In Re: Nance v. ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 96-639
In Re: JIMMY LAWRENCE NANCE,
Petitioner.
On Petition for Writ of Mandamus. (CA-96-334-R)
Submitted: January 9, 1997 Decided: January 21, 1997
Before HALL and MICHAEL, Circuit Judges, and PHILLIPS, Senior
Circuit Judge.
Petition denied by unpublished per curiam opinion.
Jimmy Lawrence Nance, Petitioner Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Appellant has filed a petition for writ of mandamus seeking
this court to compel the district court and the United States
Bureau of Prisons to cease withholding funds from his prisoner's
account for the purpose of paying his court-ordered restitution.
Appellant claims that this practice violates this court's direc-
tives in United States v. Miller, 77 F.3d 71 (4th Cir. 1996), and
United States v. Johnson, 48 F.3d 806 (4th Cir. 1995).
Mandamus is a drastic remedy, only to be granted in extra-
ordinary circumstances. In re Beard, 811 F.2d 818, 826 (4th Cir.
1987) (citing Kerr v. United States Dist. Court, 426 U.S. 394(1976)). The party seeking mandamus relief has the heavy burden of
showing that he has no other adequate avenues of relief and that
his right to the relief sought is "clear and indisputable." Mallard
v. United States Dist. Court, 490 U.S. 296, 309 (1989) (quoting
Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 384 (1953));
Beard, 811 F.2d at 826. Courts are extremely reluctant to grant a
writ of mandamus, and the decision is within the discretion of the
court addressing the application for the writ. Beard, 811 F.2d at
827 (citations omitted).
We find that Appellant has not met his burden of proof such
that mandamus is the proper remedy in this situation. Mandamus is
not a substitute for appeal, In re United Steelworkers of America,
595 F.2d 958, 960 (4th Cir. 1979), and given that the district
court's sentencing order requires immediate payment in full of
restitution by Appellant, Appellant's right to relief by way of
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mandamus is not clear. See Mallard, 490 U.S. at 309; In re First
Fed. Sav. & Loan Ass'n, 860 F.2d 135, 138 (4th Cir. 1988). Accord-
ingly, we deny Appellant's request for mandamus, and his motion for
injunction. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the Court and argument would not aid the decisional process.
PETITION DENIED
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