In re: Harry Colyer

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: FUENTES, KRAUSE and SCIRICA, Circuit Judges. Total Pages: 3. BLD-066

Case: 15-3442

Document: 003112156666

Page: 1

BLD-066

Date Filed: 12/16/2015

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 15-3442
___________
IN RE: HARRY DEAN COLYER,
Petitioner
____________________________________
On a Petition for Writ of Mandamus from the
United States District Court for the Western District of Pennsylvania
(Related to W.D. Pa. Civ. No. 3-14-cv-00066)
____________________________________
Submitted Pursuant to Rule 21, Fed. R. App. P.
November 24, 2015
Before: FUENTES, KRAUSE and SCIRICA, Circuit Judges
(Filed: December 16, 2015)
_________
OPINION*
_________

PER CURIAM
Harry Dean Colyer is a Pennsylvania prisoner proceeding pro se. In April 2014,
Colyer filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the
United States District Court for the Western District of Pennsylvania. The matter was
assigned to a Magistrate Judge who ordered the Commonwealth to show cause why the
writ should not be granted. See Rule 4 of the Rules Governing Section 2254 Cases. The

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

Case: 15-3442

Document: 003112156666

Page: 2

Date Filed: 12/16/2015

Commonwealth submitted its answer in June 2014, and Colyer submitted a reply the
following month.
In October 2015, Colyer filed the present petition for writ of mandamus asking
this Court to compel the District Court to rule on his habeas petition.1 Shortly after the
mandamus petition was docketed here, the Magistrate Judge issued a report
recommending that the petition be denied.2 As of the date of this opinion, the District
Court has not yet ruled on the petition.
Our jurisdiction derives from 28 U.S.C. § 1651, which grants us the power to
“issue all writs necessary or appropriate in aid of (our) . . . jurisdiction and agreeable to
the usages and principles of law.” A writ of mandamus is an extreme remedy that is
invoked only in extraordinary situations. See Kerr v. U.S. Dist. Court, 426 U.S. 394, 402
(1976). An appellate court may issue a writ of mandamus when an “undue delay is
tantamount to a failure to exercise jurisdiction,” Madden v. Myers, 102 F.3d 74, 79 (3d
Cir. 1996), superseded in part on other grounds by 3d Cir. L.A.R. 24.1(c), but a district
court generally retains discretion over the manner in which it controls its docket, In re
Fine Paper Antitrust Litig., 685 F.2d 810, 817 (3d Cir. 1982).

1

Colyer initially filed this mandamus petition in the United States District Court for the
Western District of Pennsylvania. The District Court subsequently transferred it here.
See 28 U.S.C. § 1631.
2

The Magistrate Judge also denied a letter-motion that Colyer addressed to the District
Court Clerk in March 2015 requesting a “more timely disposition” of his petition. (Mot.
1, ECF No. 7.)
2

Case: 15-3442

Document: 003112156666

Page: 3

Date Filed: 12/16/2015

We recognize Colyer’s concern that no action had been taken in his case for over a
year. However, given that the Magistrate Judge has now issued a Report and
Recommendation, we are confident that the District Court will review the Report and
Recommendation and adjudicate the habeas petition in a timely manner. See 28 U.S.C.
§ 636(b)(1). Therefore, we conclude that our intervention is not warranted at this time.
Accordingly, we will deny the mandamus petition.

3