No. 96-8553 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 IN RE MICHAEL T. KORANDO, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF MANDAMUS TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General JOEL M. GERSHOWITZ Attorney Department of Justice Washington, D.C. 20530-0001 (202) 514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether petitioner is entitled to a writ of mandamus compelling the district court to rule on his motion under 28 U.S.C. 2255. (I) ---------------------------------------- Page Break ---------------------------------------- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 No. 96-8553 IN RE MICHAEL T. KORANDO, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF MANDAMUS TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION OPINIONS BELOW The minute order of the court of appeals denying the petition for a writ of mandamus, App. A, infra, is unreported. The district court order staying proceedings on the 28 U.S.C. 2255 motion is also unreported. 1 JURISDICTION The judgment of the court of appeals was entered on February 26, 1997. The petition for a writ of mandamus was filed on April ___________________(footnotes) 1 Our efforts to locate a copy of this order have been unsuccessful. The order is noted on the docket sheet as "ORDER by Chief Judge J.P. Gilbert * * * staying ruling pending decision from USCA-7 as to Michael T. Korando Jr." ---------------------------------------- Page Break ---------------------------------------- 2 8, 1997. The jurisdiction of this Court rests on 28 U.S.C. 1651(a). STATEMENT 1. On April 22, 1993, following a jury trial in the United States District Court for the Southern District of Illinois, petitioner was convicted of conspiring to commit two arsons as part of an insurance fraud, in violation of 18 U.S.C. 1962(d). Gov`t C.A. Br. in United States v. Korando, No. 95-3071, filed November 8, 1995 (hereafter "Gov't C.A. Br."), at 3. Petitioner was sentenced to 78 months' imprisonment and ordered to pay restitution in the amount of 55,978.15. Ibid. On July 6, 1994, the court of appeals affirmed petitioner's conviction but vacated the order of restitution and remanded the case to the district court for further consideration of that order. United States v. Korando, 29 F.3d 1114 (7th Cir. 1994). On August 17, 1995, the district court reduced the amount of restitution to 38,000 and directed petitioner to pay that sum from his prison earnings or from his earnings following his release from prison. Gov't C.A. Br. 3. Petitioner's appeal from the revised order of restitution is currently pending in the court of appeals. United States v. Korando, No. 95-3071 (appeal filed, Aug. 25, 1995). 2. On March 14, 1996, petitioner filed in the district court a motion under 28 U.S.C. 2255 to vacate his sentence. Pet. 7. In that motion petitioner raised several claims, including lack of subject matter jurisdiction, evidentiary insufficiency, prosecutorial misconduct, jury bias, double jeopardy, ineffective ---------------------------------------- Page Break ---------------------------------------- 3 assistance of counsel, and instructional error. Id. at 9-14. On February 6, 1997, the district court issued a stay of its proceedings on the Section 2255 motion pending the court of appeals' disposition of petitioner's appeal from the revised restitution order. Id. at 7. On January 9, 1997, petitioner filed a petition in the court of appeals for a writ of mandamus compelling the district court to rule on the Section 2255 motion. Pet. 7. On February 26, 1997, the court of appeals denied the mandamus petition "[i]n light of the district courts order of February 16, 1997, staying proceedings in the underlying habeas case pending resolution of Mr. Korando's direct appeal by this court." App. A., infra. ARGUMENT Petitioner seeks a writ of mandamus from this Court directing the district court to rule on his Section 2255 motion. Petitioner has not made the showing necessary for the issuance of such a writ. See S. Ct. R. 20.1 (petition must show that writ will be in aid of Court's appellate jurisdiction, that exceptional circumstances warrant issuance, and that adequate relief cannot otherwise be obtained). Mandamus is an extraordinary remedy appropriate only if a lower court has clearly abused its discretion or exceeded its authority. A petitioner must have no other means of relief and he must show that he has a clear and undisputed right to the relief he seeks. See, e.g., Mallard v. United States District Court, 490 U.S. 296, 308-309 (1989); Kerr v. United States District Court, 426 U.S. 394, 402-403 (1976). Here, petitioner has available another ---------------------------------------- Page Break ---------------------------------------- 4 avenue of relief: he can file a motion in the district court requesting that it lift the stay of proceedings on the Section 2255 motion. Because there is no indication that petitioner filed such a motion before seeking mandamus in the court of appeals, that court correctly refused to issue a writ of mandamus. Petitioner is not entitled to the extraordinary relief he seeks from this Court. Petitioner has also not demonstrated any right to the relief he seeks, much less a clear and undisputed right. Petitioner asserts (Pet. 8-9, 14-15) that he is entitled to an order directing the district court to rule on his motion under Section 2255 because it had been pending for ten months at the time he filed his mandamus petition. In making that argument petitioner relies on the word "prompt" which appears in the text of Section 2255: Unless the motion and the files and record of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. 28 U.S.C. 2255 (emphasis added). A ten-month delay in ruling on a Section 2255 motion, however, does not call for the issuance of a writ of mandamus. Petitioner mistakenly relies (Pet. 8, 15) on cases construing 28 U.S.C. 2243, which, unlike Section 2255, contains specific time deadlines. Petitioner further argues (Pet. 15-16) that the district court erred in holding his Section 2255 motion in abeyance during the pendency of his direct appeal. As this Court recently stated, "The District Court has broad discretion to stay proceedings as an incident to its power to control its own docket." Clinton v. ---------------------------------------- Page Break ---------------------------------------- 5 Jones No- 95-1853, Slip Op. at 25 (U.S. Sup. Ct. May 27, 1997). According to petitioner, the district court abused its discretion in granting the stay because it was under the erroneous impression that the pending appeal deprived it of jurisdiction to rule on the Section 2255 motion. But if the court believed that it lacked jurisdiction to address the Section 2255 motion, the correct response would have been to dismiss the motion rather than staying it. See Fed. R. Civ. P. 12(h) (3) ("Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action."); Rule 12 of the Rules Governing Section 2255 Proceedings (" [T]he district court may * * * apply the Federal Rules of Criminal Procedure or the Federal Rules of Civil Procedure, whichever it deems most appropriate, to motions filed under these rules."). Accordingly, petitioner has not shown that the district court abused its discretion in staying the Section 2255 motion pending the disposition of his direct appeal. CONCLUSION The petition for a writ of mandamus should be denied. Respectfully submitted. WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General JOEL M. GERSHOWITZ Attorney JUNE 1997 ---------------------------------------- Page Break ---------------------------------------- UNITED STATES COURT OF APPEALS For the Seventh Circuit Chicago, Illinois 60604 February 26, 1997 Before Hon. JOHN L. COFFEY, Circuit Judge Hon. JOEL M. FLAUM, Circuit Judge Hon. FRANK H. EASTERBROOK, Circuit Judge IN THE MATTER OF: ]Petition for Writ MICHAEL T. KORANDO, JR., ]of Mandamus Petitioner. ] ] No. 97-8003 ]Southern District ]of Illinois, Benton ]Division ]No. 92 C 40052 ] The following are before the court: 1. PETITION FOR WRIT OF MANDAMUS, filed January 10, 1997, by the pro se petitioner. 2. APPLICATION TO PROCEED IN FORMA PAUPERIS, filed January 10, 1997 by the pro se petitioner. The Prison Litigation Reform Act of 1996, Pub. L. 104-132, 110 Stat. 1214, does not require the court to assess appellate fees against the petitioner as the Act does not apply to petitions for a writ of mandamus filed in cases where the underlying litigation is a petition for a writ of habeas corpus. Martin v. United States, 96 F.3d 853 (7th Cir. 1996). In light of the district court's order of February 16, 1997, staying proceedings in the underlying habeas case pending resolution of Mr. Korando's direct appeal by this court, #1 is DENIED. #2 is DENIED as moot.