In re: David Smith

Filing 920090319

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-2332

In Re:

DAVID LEE SMITH, Petitioner.

On Petition for Writ of Mandamus. (5:08-hc-02165-D)

Submitted:

March 17, 2009

Decided:

March 19, 2009

Before TRAXLER, KING, and AGEE, 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Petition denied by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 seeking an Lee Smith petitions the for a writ court of to mandamus hold an

order

directing

district

evidentiary hearing. mandamus relief.

We conclude that Smith is not entitled to

Mandamus relief is available only when the In re First

petitioner has a clear right to the relief sought.

Fed. Sav. & Loan Ass'n, 860 F.2d 135, 138 (4th Cir. 1988). Further, mandamus is a drastic remedy and should only be used in extraordinary circumstances. Kerr v. United States Dist. Court,

426 U.S. 394, 402 (1976); In re Beard, 811 F.2d 818, 826 (4th Cir. 1987). Mandamus may not be used as a substitute for appeal. In re United Steelworkers, 595 F.2d 958, 960 (4th Cir. 1979). The relief sought by Smith is not available by way of mandamus. Accordingly, we deny the petition for writ of mandamus. dispense with oral argument because the facts and We 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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