                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-7-2006

In Re: Wayne Cole
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5497




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Recommended Citation
"In Re: Wayne Cole " (2006). 2006 Decisions. Paper 1626.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1626


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APS-92                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 05-5497
                                   ________________

                                IN RE: WAYNE COLE,

                                                Petitioner

                      ____________________________________

                      On a Petition for Writ of Mandamus from the
                United States District Court for the District of New Jersey
                           (Related to Civil No. 04-cv-01452)
                      District Judge: Honorable William H. Walls

                      _____________________________________

                        Submitted Under Rule 21, Fed. R. App. P.
                                   January 6, 2006

           BEFORE: SLOVITER, McKEE and FISHER, CIRCUIT JUDGES

                               (Filed: February 7, 2006)
                              _______________________

                                      OPINION
                              _______________________

PER CURIAM

      Wayne Cole filed a petition for writ of habeas corpus in the United States District

Court for the District of New Jersey. The District Court, the Honorable William H. Walls

presiding, dismissed the petition. Cole subsequently filed a motion to recuse Judge

Walls, as well as a motion to obtain an updated docket sheet, on August 17, 2005.
Requesting that this Court order the District Court to rule on the two motions, Cole now

brings a petition for writ of mandamus.

       Mandamus is an extraordinary remedy. See Kerr v. United States Dist. Court, 426

U.S. 394, 402 (1976). Within the discretion of the issuing court, mandamus traditionally

may be “used . . . only ‘to confine an inferior court to a lawful exercise of its prescribed

jurisdiction or to compel it to exercise its authority when it is its duty to do so.’” Id.

(citations omitted). A petitioner must show “‘no other adequate means to attain the

desired relief, and . . . a right to the writ [that] is clear and indisputable.’” See In re

Patenaude, 210 F.3d 135, 141 (3d Cir. 2000) (citation omitted). Although how a district

court controls its docket is committed to its sound discretion, see In re Fine Paper

Antitrust Litigation, 685 F.2d 810, 817 (3d Cir. 1982), an appellate court may issue a writ

of mandamus when an undue delay in adjudication becomes equal to a failure to exercise

jurisdiction and rises to the level of a due process violation, see Madden v. Myers,102

F.3d 74, 79 (3d Cir. 1996).

       Here, the delay from August 2005, when Cole filed his motions, through

December 2005, when Cole filed his mandamus petition, is not so long as to constitute a

failure to exercise jurisdiction. See Madden, 102 F.3d at 79. Therefore, this petition for

writ of mandamus will be denied.
