in Re: Carl Simon v. Davis, 561 F.3d 159, 160 n.2 3d Cir. 2009 . “The appellate division of the District…

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HLD-112(July 2009) NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 09-3039
________________
IN RE: CARL SIMON,
Petitioner
____________________________________
On Petition for a Writ of Mandamus from the
Appellate Division of the District Court of the Virgin Islands
St. Thomas and St. John Division
(Related to D.V.I. Civ. No. 03-cv-00024)
_____________________________________
Submitted Under Rule 21, Fed. R. App. P.
July 31, 2009
Present: SCIRICA, Chief Judge, WEIS and GARTH, Circuit Judges
Opinion Filed: August 13, 2009
_______________________
OPINION
_______________________
PER CURIAM.
Carl Simon, an inmate of the United States Virgin Islands currently housed
in a state correctional facility in Virginia, has filed a pro se letter with this Court which
has been construed as a petition for a writ of mandamus under 28 U.S.C. § 1651. In his
letter, Simon complains of “delay in the judicial system” because, he contends, the
Appellate Division of the District Court for the Virgin Islands has “kept my appeal

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After the filing of Simon’s appeal, the Virgin Islands Legislature established a1
Supreme Court of the Virgin Islands, which has authority to review decisions of the
Superior Court. Nevertheless, “pending decisions of the Appellate Division may be
reviewed by [the Third Circuit Court of Appeals].” Gov’t of the V.I. v. Davis, 561 F.3d
159, 160 n.2 (3d Cir. 2009). “The appellate division of the District Court will cease
existence when the last case pending is decided.” Edwards v. HOVENSA, LLC, 497
F.3d 355, 359 n.2 (3d Cir. 2007).
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[docketed at D.V.I. Civ. No. 03-cv-00024] pending in that court from the year 2003 up
until the present.” Simon argues that the Appellate Division’s alleged delay in ruling on
the appeal, which was taken from an order of the Superior Court of the Virgin Islands
denying Simon’s petition for a writ of habeas corpus, has been undue and worked a denial
of his constitutional rights. We will deny the mandamus petition.
Simon is serving a life sentence following his 1995 conviction in the
Territorial Court of the Virgin Islands (now known as the Superior Court of the Virgin
Islands) on charges of murder, robbery, and burglary. In 2001, Simon filed an amended
habeas corpus petition in the Superior Court. In 2003, after the Superior Court denied
relief, Simon appealed to the Appellate Division of the District Court of the Virgin
Islands.1
In January 2004, the Appellate Division appointed counsel to represent
Simon. Counsel filed a brief and moved to withdraw. In September 2004, the Appellate
Division appointed new counsel, and in March 2005, granted an extension of time to file
a brief. After the grant of a second extension, counsel filed a brief and moved to
withdraw. The Appellate Division denied the motion to withdraw and calendared

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Simon’s appeal for a hearing.
On September 10, 2007, the Appellate Division entered an Opinion and
Order remanding the matter to the Superior Court for a determination as to whether a
certificate of probable cause should issue for Simon’s appeal, in accordance with Virgin
Islands Rule of Appellate Procedure 14(b). On October 2, 2008, the Appellate Division
docketed the Superior Court’s order granting Simon a certificate of probable cause to
appeal. The Appellate Division then calendared Simon’s appeal for a hearing on June 19,
2009. Simon’s mandamus petition complaining of delay on appeal was docketed in this
Court less than one month later, on July 16, 2009.
A writ of mandamus is an appropriate remedy in extraordinary
circumstances only. Kerr v. United States Dist. Ct., 426 U.S. 394, 403 (1976). A
petitioner seeking the writ must show, among other things, that the right to its issuance is
“clear and indisputable.” Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980).
In Madden v. Meyers, 102 F.3d 74 (3d Cir. 1996), we observed that “an appellate court
may issue a writ of mandamus on the ground that undue delay [in ruling on a habeas
petition] is tantamount to a failure to exercise jurisdiction ... and, without actually issuing
a writ, may order a district court not to defer adjudicating a case.” Id. at 79 (citations
omitted). In Madden, the petitioner sought relief after his habeas petition had been
pending for four months. We denied the petition, holding that “[a]lthough this delay is of
concern, it does not yet rise to the level of a denial of due process.” Id.; see also Hassine

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Simon raises several additional contentions in his mandamus petition, including2
complaints about his transfer to a correctional facility in Virginia, the quality of law
library materials at the Virginia facility, and the Superior Court’s decision to exercise
jurisdiction over Simon’s criminal trial. None of these complaints is properly raised in
this mandamus proceeding, and thus we do not address them.
v. Zimmerman, 160 F.3d 941, 954 n. 12 (3d Cir. 1998) (stating that “a habeas petitioner
seeking mandamus ... must experience extraordinary delay”).
Here, the Appellate Division submitted Simon’s appeal for consideration on
the merits less than one month prior to the docketing of Simon’s mandamus petition, a
period of time that does not rise to the level of undue delay. It is evident, as Simon
contends, that the overall proceedings related to his appeal have been protracted, but we
are not presented with any evidence of extraordinary delay, nor do we have reason to
believe that there will be delay going forward, particularly in light of the Appellate
Division’s recent submission of the appeal. Significantly, a substantial portion of the
delay in adjudicating the appeal appears to be attributable to the motions by Simon’s
counsel for leave to withdraw, as well as Simon’s failure to obtain a certificate of
probable cause to appeal.
In short, because the delay of which Simon complains is not “tantamount to
a failure to exercise jurisdiction,” Madden, 102 F.3d at 79, we will deny the petition for a
writ of mandamus. We are confident that the Appellate Division will not defer its2
adjudication of Simon’s appeal and will issue a decision promptly.

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