DLD-094                                                       NOT PRECEDENTIAL

                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT
                                    ___________

                                         No. 13-4120
                                         ___________

                               IN RE: JASON SMART-EL,
                                                 Petitioner
                         ____________________________________

                        On a Petition for Writ of Mandamus from the
                  United States District Court for the District of New Jersey
                          (Related to D.N.J. Civ. No. 13-cv-00164)
                        District Judge: Honorable Noel L. Hillman
                        ____________________________________

                      Submitted Pursuant to Rule 21, Fed. R. App. P.
                                   December 5, 2013
           Before: SMITH, HARDIMAN and VAN ANTWERPEN, Circuit Judges

                               (Opinion filed: January 10, 2014)
                                          _________

                                          OPINION
                                          _________

PER CURIAM

      Jason Smart-El has filed a pro se petition for a writ of mandamus seeking to compel the

United States District Court for the District of New Jersey to take action on his pending motion

to vacate his sentence. For the following reasons, we will deny the mandamus petition.

      A writ of mandamus is a drastic remedy available only in extraordinary circumstances.

See In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir. 2005). A petitioner

seeking the writ “must have no other adequate means to obtain the desired relief, and must


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show that the right to issuance is clear and indisputable.” Madden v. Myers, 102 F.3d 74, 79

(3d Cir. 1996). Generally, a court’s management of its docket is discretionary, see In re Fine

Paper Antitrust Litig., 685 F.2d 810, 817 (3d Cir. 1982), and there is no “clear and

indisputable” right to have a district court handle a case in a particular manner. See Allied

Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980) (per curiam). That said, a writ of

mandamus may issue where a district court’s “undue delay is tantamount to a failure to

exercise jurisdiction.” Madden, 102 F.3d at 79.

       In January 2013, Smart-El filed a motion pursuant to 28 U.S.C. § 2255. After receiving

warnings pursuant to United States v. Miller, 197 F.3d 644 (3d Cir. 1999), Smart-El notified

the District Court in May 2013 that he wished to proceed with his § 2255 motion “as filed.”

Smart-El filed the present mandamus petition on October 17, 2013, accurately noting that “no

action[,] even in the form of a show cause order[,] has been” taken in the District Court since

he responded to the Miller notice. But, on November 12, 2013, the District Court directed the

Government to file an answer within 30 days. Given this recent activity, we cannot say that

there has been a persistent delay “tantamount to a failure to exercise jurisdiction.” Madden,

102 F.3d at 79. Accordingly, we will deny the mandamus petition.




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