in Re: Jeffrey L. Keith v. Myers, 102 F.3d 74, 79 3d Cir. 1996 . Although a district court has discretion over…

1
HLD-007 (October 2009) NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-3645
___________
IN RE: JEFFREY L. KEITH,
Petitioner
____________________________________
On a Petition for Writ of Mandamus from the
United States District Court for the Middle District of Pennsylvania
(Related to D.C. Civil No. 3:08-cv-01998)
____________________________________
Submitted Pursuant to Rule 21, Fed. R. App. P.
October 30, 2009
Before: SCIRICA, Chief Judge, WEIS and GARTH, Circuit Judges
(Opinion filed: November 12, 2009)
_________
OPINION
_________
PER CURIAM.
On November 4, 2008, Petitioner Jeffrey Keith, a prisoner proceeding pro
se, petitioned the District Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254,
challenging the voluntariness of his plea and the effectiveness of his appellate counsel.
The Commonwealth of Pennsylvania moved for an extension of time to file a response,
and in April 2009, the District Judge granted the motion, granting the Commonwealth

-- 1 of 3 --

At the time Keith submitted his motion for writ of mandamus, it appears1
that he had not yet received a copy of the Commonwealth’s response, which was filed on
August 31, 2009. See Motion for Writ of Mandamus, p. 4 (“The Petitioner asserts that it
is past September 1st 2009, and apparently no response has been filed because he has not
receiving nothing, nor has the District Court responded.”).
2
until June 1, 2009, to respond. Having received no response, on August 5, 2009, the
District Judge entered an order that a hearing on the habeas petition would be scheduled if
the Commonwealth did not submit a response by September 1, 2009. The
Commonwealth then submitted a response to Keith’s habeas petition on August 31, 2009.
On September 4, 2009, Keith petitioned this Court for a writ of mandamus, requesting an
order compelling the District Court to act upon his habeas petition. Since that time, on1
September 9, 2009, Keith filed a reply brief to the Commonwealth’s response to his
habeas petition in the District Court.
Mandamus is a drastic remedy available only in extraordinary cases, see In
re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir. 2005), as the petitioner must
demonstrate that he has “no other adequate means” to obtain the relief desired and a
“clear and indisputable” right to issuance of the writ. Madden v. Myers, 102 F.3d 74, 79
(3d Cir. 1996). Although a district court has discretion over the management of its
docket, see In re Fine Paper Antitrust Litig., 685 F.2d 810, 817-18 (3d Cir. 1982), a
federal appellate court “may issue a writ of mandamus on the ground that [the district
court’s] undue delay is tantamount to a failure to exercise jurisdiction.” Madden, 102
F.3d at 79.

-- 2 of 3 --

We recognize that approximately one year has elapsed since the date Keith
submitted his habeas petition. However, the Commonwealth recently submitted a
response to which Keith submitted a reply. We cannot conclude that the overall delay in
this matter rises to the level of a denial of due process, see id., and we are confident that
the District Court will enter an order in due course. Accordingly, the petition is denied.
3

-- 3 of 3 --