In re: Warren Small

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: SMITH, MCKEE and FUENTES, Circuit Judges. Total Pages: 3. HLD-002

Case: 16-4315

Document: 003112513286

Page: 1

HLD-002

Date Filed: 01/17/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 16-4315
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IN RE: WARREN SMALL,
Petitioner
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On a Petition for Writ of Mandamus from the
United States District Court for the District of Delaware
(Related to 1-15-cv-01029)
____________________________________
Submitted Pursuant to Rule 21, Fed. R. App. P.
December 28, 2016

Before: SMITH, Chief Judge, McKEE and FUENTES, Circuit Judges
(Opinion filed: January 17, 2017)
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OPINION *
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PER CURIAM
Warren Small filed this mandamus petition pursuant to 28 U.S.C. § 1651, seeking
an order directing the District Court to reconsider a ruling on his motion to expand the
record and to rule on his pro se habeas petition under 28 U.S.C. § 2254. For the
following reasons, 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.

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Document: 003112513286

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Date Filed: 01/17/2017

On January 5, 2016, Small filed his § 2254 petition challenging a Delaware
conviction for firearm offenses, raising 28 grounds for relief. Small also filed a motion to
expand the record.

After the State filed a response, Small filed a reply, and a

supplemental reply, the latter on June 20, 2016. On August 18, 2016, the District Court
denied Small’s motion to expand the record. His § 2254 petition remains pending.
On December 16, 2016, Small filed his mandamus petition. He complains of the
delay in the adjudication of his habeas petition and seeks an order to compel the District
Court to reconsider its ruling on his motion to expand the record.
Under 28 U.S.C. § 1651, we may “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 extraordinary remedy. See Kerr v. U.S. Dist. Court, 426 U.S. 394, 402
(1976). To justify the use of this extraordinary remedy, a petitioner must show that he
has a clear and indisputable right to the writ and no other adequate means to obtain the
relief desired. See Haines v. Liggett Grp. Inc., 975 F.2d 81, 89 (3d Cir. 1992).
Small does not meet the standard for mandamus relief. Notably, mandamus is not
a substitute for an appeal; if a petitioner can obtain relief by an ordinary appeal, a court
will not issue the writ. See In re Ford Motor Co., 110 F.3d 954, 957 (3d Cir. 1997),
abrogated on other grounds, Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100 (2009).
Small has not shown why he cannot raise a challenge to the District Court’s denial of his
motion to expand the record on appeal from a final judgment.
Furthermore, the District Court’s delay in adjudicating Small’s petition does not
warrant mandamus relief. “[A]n appellate court may issue a writ of mandamus on the
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Date Filed: 01/17/2017

ground that undue delay is tantamount to a failure to exercise jurisdiction,” Madden v.
Myers, 102 F.3d 74, 79 (3d Cir. 1996), but the manner in which a court controls its
docket is discretionary, In re Fine Paper Antitrust Litig., 685 F.2d 810, 817 (3d Cir.
1982).
Small’s petition has been ripe for resolution at least since the filing of his
supplemental reply. While a six-month delay raises some concern, see Madden, 102 F.3d
at 79, we do not believe that the delay in ruling on the 28-claim petition is so lengthy that
it is “tantamount to a failure to exercise jurisdiction.” See id. In the intervening months,
the District Court has adjudicated two of Small’s motions. And we are confident that the
District Court will rule on the petition without undue delay.
For the foregoing reasons, we will deny the petition for a writ of mandamus.

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