Caleb McGillvary v.

• Court: Court of Appeals for the Third Circuit
• Decided: February 21, 2025
• Docket: 24-3177
• Status: Unpublished

Opinion

DLD-054 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 24-3177 ___________

IN RE: CALEB L. MCGILLVARY, Petitioner ____________________________________

On a Petition for Writ of Mandamus from the United States District Court for the District of New Jersey (Related to 1:22-cv-04185) ____________________________________

Submitted Pursuant to Rule 21, Fed. R. App. P. December 19, 2024 Before: RESTREPO, FREEMAN, and NYGAARD, Circuit Judges

(Opinion filed: February 21, 2025) _________

OPINION* _________

PER CURIAM

In June 2022, Petitioner Caleb McGillvary filed a petition with the District Court

for a writ of habeas corpus under 28 U.S.C. § 2254. On March 30, 2023, the State filed

its answer. On May 15, 2023, McGillvary filed a reply to the State’s answer. He also

filed a motion for summary judgment, which the State opposed. On August 15, 2023, in

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. a text order, the District Court denied the motion for summary judgment as improperly

filed. See D.Ct. ECF No. 25 (citing cases).

Thereafter, McGillvary petitioned for a writ of mandamus, asking this Court to

compel the District Court to rule on the merits of his motion for summary judgment. We

denied the petition, noting that McGillvary’s “dispute is more akin to one concerning the

District Court’s case management, which is a matter of its discretion, and not a basis for

mandamus relief.” In re McGillvary, Nos. 23-2660, 23-2820 (3d Cir. Nov. 28, 2023)

(citations omitted).

In July 2024, pursuant to 28 U.S.C. § 292(b), McGillvary’s pending habeas

petition was transferred to an out-of-district judge for disposition. See D.Ct. ECF No. 40.

McGillvary filed a new motion for summary judgment, see D.Ct. ECF No. 44, which was

referred to a magistrate judge for appropriate further action, including the issuance of a

report and recommendation, see D.Ct. ECF No. 45. The State once again opposed the

motion for summary judgment. On November 5, 2024, the Magistrate Judge issued a

report recommending that McGillvary’s habeas petition be denied. See D.Ct. ECF No.

55.

McGillvary filed written objections to the report and recommendation. Among

other arguments, McGillvary complained that the report and recommendation “ignores

the allegations in the reply and undisputed facts in the summary judgment motion, which

entitle Petitioner to habeas relief,” D.Ct. ECF No. 58 at 4, and “erroneously denies the

summary judgment motion as duplicative,” id. at 11. Those objections remain pending

before the District Court.

2 On November 14, 2024, the same date that McGillvary executed his written

objections to the report and recommendation, he also executed a writ of mandamus to this

Court. See 3d Cir. ECF No. 1. Although his objections were pending, McGillvary

complains that the “District Court obstinately refuses to adjudicate the allegations

contained in the Habeas Traverse and Reply as a pleading.” 3d Cir. ECF No. 1 at 9. He

asks this Court to “issue the writ of mandamus and order the U.S. District Court for the

District of New Jersey to recognize the traverse and reply as a pleading, and give the

allegations within it and the Statement of Material Facts not in Dispute filed in ECF 44

due consideration and adjudicate the merits thereof.” Id. at 22.

A writ of mandamus will issue only in extraordinary circumstances. See Sporck v.

Pei, 759 F.2d 312, 314 (3d Cir. 1985). McGillvary must show that he has a clear and

indisputable right to the relief sought, and that a writ of mandamus from this Court is the

only available remedy. See Kerr v. U.S. Dist. Court, 426 U.S. 394, 403 (1976).

McGillvary has failed to make such a showing. As McGillvary has raised similar

concerns in his pending objections to the report and recommendation, he clearly has a

remedy available through the District Court. Further, as this Court has previously

explained to McGillvary, his allegations regarding the District Court’s handling of his

filings concern the District Court’s case management, which is a matter of its discretion,

see In re Fine Paper Antitrust Litig., 685 F.2d 810, 817 (3d Cir. 1982), and not a basis for

3 mandamus relief, see Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980) (per

curiam). Accordingly, we will deny the petition for a writ of mandamus.1

1 McGillvary’s multiple motions for relief pursuant to Rule 27(c) of the Federal Rules of Appellate Procedure are denied. 4