In re: Gary Terry

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion for writ of mandamus (FRAP 21) [998496709-2]; denying Motion to vacate [998494626-2]; granting Motion to proceed in forma pauperis (FRAP 24) [998493925-2] Originating case number: 1:03-cr-00299-NCT-1 Copies to all parties and the district court/agency. [998537831] [10-2410]

In re: Gary Terry

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Case: 10-2410

Document: 14

Date Filed: 03/04/2011

Page: 1

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 10-2410

In Re:

GARY IVAN TERRY, Petitioner.

On Petition for Writ of Mandamus. (1:03-cr-00299-NCT-1)

Submitted:

February 28, 2011

Decided:

March 4, 2011

Before TRAXLER, Chief Judge, and KING and DIAZ, Circuit Judges.

Petition denied by unpublished per curiam opinion.

Gary Ivan Terry, Petitioner Pro Se.

Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

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Date Filed: 03/04/2011

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PER CURIAM: Gary Ivan Terry petitions for a writ of mandamus

seeking an order from this court directing the district court judge to: (1) vacate its orders denying Terry's motions for

recusal; (2) vacate the order denying Terry's 28 U.S.C.A. § 2255 (West Supp. 2010) motion; and (3) grant Terry's motion for an evidentiary hearing. He has also filed an emergency motion

seeking to have this court vacate the district court's order denying Terry's motion for recusal and vacate his conviction and sentence imposed in Missouri. entitled to relief. Mandamus relief is available only when the petitioner has a clear right to the relief sought. Loan Ass'n, is 860 a F.2d drastic 135, 138 (4th and In re First Fed. Sav. & Cir. 1988). be used Further, only in We conclude that Terry is not

mandamus

remedy

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). It is well-established that mandamus may not be In re United Steelworkers, 595

used as a substitute for appeal. F.2d 958, 960 (4th Cir. 1979).

The relief sought by Terry is not available by way of mandamus. Accordingly, although we grant leave to proceed in

forma pauperis, we deny Terry's motion for emergency relief and we deny Terry's petition for a writ of mandamus. 2 We dispense

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Date Filed: 03/04/2011

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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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