In re: Kendall Garland, et al

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: CHAGARES, GREENAWAY, JR. and SLOVITER, Circuit Judges. Total Pages: 3. DLD-162

Case: 16-1089

Document: 003112246536

Page: 1

DLD-162

Date Filed: 03/29/2016

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-1089
___________
IN RE: KENDALL GARLAND,
Petitioner
____________________________________
On a Petition for Writ of Mandamus from the
United States District Court for the Eastern District of Pennsylvania
(E.D. Pa. No. 2-14-cv-05329)
____________________________________

Submitted Pursuant to Rule 21, Fed. R. App. P.
February 25, 2016
Before: CHAGARES, GREENAWAY, JR. and SLOVITER, Circuit Judges
(Filed: March 29, 2016)
_________
OPINION*
_________
PER CURIAM
I.
Kendall Garland (“Garland”) petitions for a writ of mandamus to compel the
United States District Court for the Eastern District of Pennsylvania to rule on his petition
for a writ of habeas corpus under 28 U.S.C. § 2254. We will deny the petition.

*

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

Case: 16-1089

Document: 003112246536

Page: 2

Date Filed: 03/29/2016

In September 2014, Garland filed his habeas petition in the Eastern District of
Pennsylvania. In November 2014, Garland requested a stay or termination without
prejudice. The District Court dismissed his petition without prejudice, and Garland filed
a revised habeas petition in April 2015. The District Court referred his petition to
Magistrate Judge M. Faith Angell in May for a report and recommendation. After several
motions filed by Garland and the respondents, Garland filed a second request for a stay of
the proceedings or voluntary dismissal without prejudice in July 2015. Magistrate Judge
Angell recommended dismissing his petition without prejudice. Shortly thereafter,
Garland filed objections to the report and recommendation (“R & R”) and sought to
withdraw his second request. Before the District Court could consider his objections,
Garland appealed from the R & R in September 2015. (C.A. No. 15-3303.)
After Garland appealed, the District Court issued an order approving and adopting
the R & R. Garland appealed from this order (C.A. No. 15-3719), and this Court
dismissed both appeals for lack of appellate jurisdiction. The case remains pending in the
District Court, where Magistrate Judge Angell issued an R & R on February 16, 2016,
recommending that Garland’s habeas petition be denied and dismissed.
II.
The writ of mandamus is a “drastic remedy that a court should grant only in
extraordinary circumstances in response to an act amounting to a judicial usurpation of
power.” In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir. 2005). Three
2

Case: 16-1089

Document: 003112246536

Page: 3

Date Filed: 03/29/2016

conditions must be met before a petitioner should seek a writ of mandamus. Id. First, the
petitioner must have “no other adequate means to attain the relief” he seeks; second, the
right to have a writ of mandamus issued must be “clear and indisputable”; and the court
that would issue the writ is satisfied that mandamus is appropriate under the
circumstances. Id. at 378-79. A Court of Appeals may issue a writ of mandamus “on the
ground that undue delay is tantamount to a failure to exercise jurisdiction.” Madden v.
Myers, 102 F.3d 74, 79 (3d Cir. 1996), superseded on other grounds by 3d Cir. L.A.R.
24.1(c) (1997).
Garland asks this Court to issue an order directing the District Court to decide his
habeas petition within 60 days or less. As set forth above, the District Court has not
unduly delayed Garland’s case. The docket shows that the District Court has taken steps
to properly adjudicate Garland’s habeas petition. Accordingly, we will deny Garland’s
petition for a writ of mandamus.

3