in Re: Kester Sandy v. Peil, 759 F.2d 312, 314 3d Cir. 1985 . As a precondition to the issuance of the…

BLD093 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 22-1123
___________
IN RE: KESTER SANDY,
Petitioner
____________________________________
On a Petition for Writ of Mandamus from the
United States District Court for the Eastern District of Pennsylvania
(Related to Civ. No. 20-cv-03290)
____________________________________
Submitted Pursuant to Rule 21, Fed. R. App. P.
March 3, 2022
Before: MCKEE, GREENAWAY, JR. AND PORTER, Circuit Judges
(Opinion filed: March 23, 2022)
_________
OPINION*
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PER CURIAM
Kester Sandy has filed a petition for a writ of mandamus. For the reasons that
follow, we will deny the petition without prejudice.
In May 2020, Sandy filed a petition pursuant to 28 U.S.C. § 2241 in the District
Court. After the District Court dismissed the petition, Sandy filed a motion pursuant to
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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Fed. R. Civ. P. 60(b) in April 2021, requesting that the District Court vacate its order. A
week later, Sandy filed a notice of appeal which was docketed at C.A. No. 21-1701. That
appeal was stayed pending the disposition of the Rule 60(b) motion by the District Court.
The Government responded to the motion in June 2021,1 and the motion remains
pending in the District Court.
In his mandamus petition, Sandy seeks an order directing the District Court to
decide his Rule 60(b) motion. In the alternative, he requests that we address his appeal of
the dismissal of his § 2241 petition before the Rule 60(b) motion is decided.
A writ of mandamus will issue only in extraordinary circumstances. See Sporck v.
Peil, 759 F.2d 312, 314 (3d Cir. 1985). As a precondition to the issuance of the writ, the
petitioner must establish that there is no alternative remedy or other adequate means to
obtain the desired relief, and the petitioner must demonstrate a clear and indisputable
right to the relief sought. Kerr v. U.S. Dist. Court, 426 U.S. 394, 403 (1976). As a
general rule, the manner in which a court disposes of cases on its docket is within its
discretion. See In re Fine Paper Antitrust Litig., 685 F.2d 810, 817 (3d Cir. 1982).
Nonetheless, mandamus may be warranted where a District Court’s delay is tantamount
to a failure to exercise jurisdiction. See Madden v. Myers, 102 F.3d 74, 79 (3d Cir.
1996). Here, the Government’s response was filed in June 2021, and the District Court
1 The Government’s response was docketed in Sandy’s criminal case but not in the
separate civil case for his § 2241 petition. See Gov’t’s Mot. in Opp’n, United States v.
Sandy, Crim. No. 04-cr-00324, (E.D. Pa. June 8, 2021) ECF #59.

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has not yet acted on the Rule 60(b) motion. While concerning, the time that has passed
since then does not rise to the level of a failure to exercise jurisdiction or an extraordinary
circumstance. See id. (concluding that mandamus relief was not warranted in habeas
case where petitioner’s most recent filing had been pending before the district court for
about eight months).
We are confident that the District Court will act on Sandy’s Rule 60(b) motion
within a reasonable time. Accordingly, we will deny the mandamus petition without
prejudice to refiling if the District Court does not act expeditiously. We will also deny
Sandy’s alternative request that we act on his appeal at No. 21-1701 before the Rule
60(b) motion is decided. See Fed. R. App. P. 4(a)(4)(B)(i) (providing that a notice of
appeal filed before disposition of a pending motion under Rule 4(a)(4)(A) becomes
effective when the order disposing of the motion is entered).

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