in Re: Wayne Cole v. United States Dist. Court, 426 U.S. 394, 402 1976 . Within the discretion of the…

APS-92 NOT PRECEDENTIAL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.

-- 1 of 2 --

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.

-- 2 of 2 --