Vinson v. People of the State of Colorado et al

Filing 41

USCA ORDER re: 40 Order, Correcting a clerical error in the issuance of this order dated 03/19/09 and hereby reissues the order to reflect the correct District Court case number in the caption. The order is reissued nunc pro tunc. USCA case no. 09-1074. (bjrsl, )

Case: 09-1074

Document: 01017928668

Date Filed: U n i t e d States Court 1 Appeals 03/26/2009 Page: of T e n t h Circuit

FILED

M a r c h 26, 2009
UNITED STATES COURT OF APPEALSE l i s a b e t h A. Shumaker FOR THE TENTH CIRCUIT
C l e r k of Court

In re: LARRY L. VINSON, Petitioner.

No. 09-1074 (D.C. No. 1:07-CV-00584-BNB-MJW) (D. Colo.)

ORDER

The Court, in order to correct a clerical error in the issuance of this order dated March 19, 2009, hereby reissues the order to reflect the correct District Court case number in the caption. The order is reissued nunc pro tunc and is to read as follows: Larry L. Vinson has filed a petition for a writ of mandamus to compel the United States District Court for the District of Colorado to decide his 28 U.S.C. § 2254 petition in case No. 07-cv-584. Petitioner filed his habeas petition on March 23, 2007, and it was at issue as of October 9, 2007. "[T]he remedy of mandamus is a drastic one, to be invoked only in extraordinary situations." Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34 (1980). "For mandamus to issue, there must be a clear right to the relief sought, a plainly defined and peremptory duty on the part of respondent to do the action in question, and no other adequate remedy available." Johnson v. Rogers, 917 F.2d 1283, 1285 (10th Cir. 1990). In Johnson, we held that a fourteen-month delay in deciding a prisoner's habeas

Case: 09-1074

Document: 01017928668

Date Filed: 03/26/2009

Page: 2

petition for no reason other than docket congestion was impermissible. Id. This case has been at issue for seventeen months. We direct respondents, People of the State of Colorado and Attorney General John W. Suthers, to file a response to the mandamus petition within thirty days of the date of this order. We also invite the district court to respond within the same time period. We grant petitioner's motion for leave to proceed without prepayment of costs or fees.

Entered for the Court,

ELISABETH A. SHUMAKER, Clerk

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