In re David Kaufman

ALD-197 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 10-1884
IN RE: DAVID KAUFMAN,
Petitioner
On Petition for Writ of Mandamus from the
United States District Court for the Middle District of Pennsylvania
(Related to D.C. Civil Action No. 09-cv-0891)
Submitted Under Rule 21, Fed. R. App. P.
May 13, 2010
Before: SLOVITER, AMBRO and SMITH, Circuit Judges
(Opinion filed June 4, 2010)
OPINION
PER CURIAM
Petitioner David Kaufman, a state prisoner proceeding pro se, seeks a writ of
mandamus either compelling the District Court to rule on his second motion for release
on bail or granting his release on bail pursuant to this Court’s authority. For the reasons
that follow, we will deny the petition.
In 1999, Kaufman was sentenced to six consecutive eight to twenty-four month
sentences on six charges of making terroristic threats, with credit to be given for time
served in county jail. He was also sentenced to ten years of probation to run consecutive
to his term of incarceration.
In May 2009, Kaufman filed in the District Court a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. In the petition, Kaufman raised a variety of
challenges to his sentence calculations and further claimed that one of the conditions of
his parole was illegal. In July 2009, Kaufman filed in the District Court a “renewed
motion for bail,” seeking his release from prison pending resolution of the habeas
petition. That same month, the District Court denied Kaufman’s bail motion, finding that
he did not meet the standard for relief set forth in Landano v. Rafferty, 970 F.2d 1230,
1239 (3d Cir. 1992). In July 2009, Kaufman filed a second “renewed motion for bail”
which the District Court has yet to rule on.
A writ of mandamus is an extraordinary remedy. See In re Pasquariello, 16 F.3d
525, 528 (3d Cir. 1994). The petitioner must have no other adequate means to obtain the
relief desired and the petitioner must show a “clear and indisputable” right to the writ.
See Kerr v. United States District Court, 426 U.S. 394, 403 (1976). In addition,
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). It appears from Kaufman’s mandamus petition that he requests that this Court
either: 1) compel the District Court to rule on his second pending bail motion; or 2)
reverse the District Court’s previous denial of his request for bail and grant his release
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pursuant to our own authority.
To the extent Kaufman asks us to compel the District Court to adjudicate
Kaufman’s second “renewed motion for bail” pending disposition of his § 2254 petition,
we decline to do so. As a general rule, the manner in which a court disposes of cases on
its docket is within its discretion. See In re Fine Paper Antitrust Litig., 685 F.2d 810, 817
(3d Cir. 1982). Indeed, given the discretionary nature of docket management, there can
be no “clear and indisputable” right to have the District Court handle a case on its docket
in a certain manner. Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980).
While mandamus may be warranted where a District Court’s delay is tantamount to a
failure to exercise jurisdiction, Madden v. Myers, 102 F.3d 74, 79 (3d Cir. 1996), we do
not find that this case presents such a situation. We are confident that the District Court
will enter an order in due course.
To the extent Kaufman asks as us to construe his mandamus petition as a notice of
appeal and overturn the District Court’s previous denial of his request for release on bail
(and grant his release), we are unable to do so as such a notice of appeal would be
untimely. A notice of appeal in a civil case must be filed within thirty days of the date of
entry of the judgment or order appealed. See Fed. R. App. P. 4(a)(1)(A); see also Bowles
v. Russell, 127 S. Ct. 2360, 2366 (2007) (“[T]he timely filing of a notice of appeal in a
civil case is a jurisdictional requirement.”). The District Court’s order denying
Kaufman’s request for release on bail was entered on July15, 2009. He did not file his
mandamus petition until March 31, 2010, which is, of course, well beyond the thirty day
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appeal period. Accordingly, we do not have jurisdiction to review the District Court’s
previous order denying Kaufman’s request for release on bail.
For all of these reasons, we will deny Kaufman’s mandamus petition.
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