ALD-056 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 20-3534 ___________

IN RE: LUTHER L. WARE, 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. 3-19-cv-00115) ____________________________________

Submitted Pursuant to Rule 21, Fed. R. App. P. December 23, 2020 Before: MCKEE, GREENAWAY, JR. and BIBAS, Circuit Judges

(Opinion filed: February 16, 2021) _________

OPINION* _________

PER CURIAM

Luther L. Ware seeks a writ of mandamus to compel the District Court to consider

and rule on his habeas petition under

, which raises several grounds for

relief regarding his 2015 Clearfield County criminal convictions. For reasons that follow,

we will deny the mandamus petition.

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Ware submitted his habeas petition in July 2019, along with a motion for leave to

proceed in forma pauperis. In October 2019, Ware filed notice of his change of address

and filed a motion for appointment of counsel. In January 2020, Ware sent a letter

requesting prompt consideration of his habeas petition. In February 2020, the assigned

Magistrate Judge granted Ware’s in forma pauperis motion, denied his counsel motion

without prejudice, directed service of the habeas petition, and ordered a response to be

filed. In the months since then, the parties filed a number of motions, including Ware’s

motion for his immediate release. Ultimately, the request for immediate release was

denied. More recently, the Respondent filed a motion for an extension of time to file an

answer to Ware’s habeas petition. On December 4, 2020, the Magistrate Judge granted

the motion and set a deadline of January 25, 2021.

Ware then filed this mandamus petition, dated December 9, 2020, five days after

the Magistrate Judge issued the scheduling order. Ware argues that he is entitled to relief

on his habeas claims and that the District Court is required to set a hearing date in

accordance with

. Thus, he requests our mandamus intervention for the

District Court to hear and decide his habeas petition in a prompt fashion.

A writ of mandamus may be warranted where a district court’s “undue delay is

tantamount to a failure to exercise jurisdiction.” See Madden v. Myers,

(3d Cir. 1996). However, the way a court controls its docket is discretionary. See In re

Fine Paper Antitrust Litig.,

(3d Cir. 1982). A mandamus petitioner

2 must establish the absence of other adequate means to attain the desired relief and that the

right to the writ is clear and indisputable. See Madden,

.

Although it appears that an initial delay occurred after Ware’s habeas case was

docketed, the case recently has been progressing in the District Court. Ware filed his

mandamus petition before the due date for the Respondent’s answer, before his habeas

petition became ripe for the District Court’s consideration. Ware may pursue his habeas

claims in the normal course of District Court proceedings, and he has adequate means to

attain consideration of his § 2254 habeas petition. We find no reason to issue mandamus

relief here. See In re Chambers Dev. Co., Inc.,

(3d Cir. 1998)

(explaining that employing the “drastic remedy” of mandamus is disfavored and seldom

used).

Accordingly, we will deny Ware’s mandamus petition.

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