David Smith

Filing 920090505

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-1090

In Re:

DAVID LEE SMITH, Petitioner.

On Petition for Writ of Mandamus. (5:08-hc-02184-H)

Submitted:

April 23, 2009

Decided:

May 5, 2009

Before MICHAEL, GREGORY, and DUNCAN, 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Petition denied by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 Lee Smith petitions for a writ of mandamus

seeking an order to direct the district court to review the denial of his 28 U.S.C.A. § 2255 (West Supp. 2008) motion. conclude that Smith is not entitled to mandamus relief. Mandamus relief is available only when the petitioner has a clear right to the relief sought. & Loan Ass'n, is a 860 F.2d 135, 138 (4th In re First Fed. Sav. Cir. 1988). only be Further, used in We

mandamus

drastic

remedy

and

should

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 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, pauperis, dispense we with although deny oral the we grant leave for to proceed of in forma We legal

petition

writ the

mandamus. and

argument

because

facts

contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

PETITION DENIED

2