In Re: David Smith v. , 621 F. App'x 185 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1763
In re: DAVID LEE SMITH,
Petitioner.
On Petition for Writ of Mandamus.
(No. 5:15-hc-02128-D)
Submitted: October 20, 2015 Decided: October 22, 2015
Before MOTZ, KEENAN, and THACKER, Circuit Judges.
Petition denied by unpublished per curiam opinion.
David Lee Smith, Petitioner Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Smith, a North Carolina inmate, petitions for a writ
of mandamus directing the district court to direct the state
court to either hold an evidentiary hearing on the merits of his
challenges to his criminal judgment or set aside his
convictions. He also seeks an order from this court directing
the district court to rule on his motions for immediate release
and for a preliminary injunction. The district court recently
dismissed Smith’s 28 U.S.C. § 2254 (2012) petition as successive
and denied the motions. We conclude that Smith is not entitled
to mandamus relief.
Mandamus relief is a drastic remedy and should be used only
in extraordinary circumstances. Kerr v. U.S. Dist. Court, 426
U.S. 394, 402 (1976); United States v. Moussaoui, 333 F.3d 509,
516-17 (4th Cir. 2003). Further, mandamus relief is available
only when the petitioner has a clear right to the relief sought.
In re First Fed. Sav. & Loan Ass’n, 860 F.2d 135, 138 (4th Cir.
1988).
Mandamus may not be used as a substitute for appeal. In re
Lockheed Martin Corp., 503 F.3d 351, 353 (4th Cir. 2007). In
addition, the district court has ruled on the motions Smith
identified in his mandamus petition, rendering the request moot.
The relief sought by Smith is not available by way of mandamus.
Accordingly, although we grant leave to proceed in forma
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pauperis, we deny the petition for writ of mandamus, amended
petition, and supplemental petitions. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
PETITION DENIED
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