In re: Gary Terry

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UNPUBLISHED PER CURIAM OPINION filed.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]

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In re: Gary Terry Doc. 0 Case: 10-2410 Document: 14 Date Filed: 03/04/2011 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-2410 In Re: GARY IVAN TERRY, Petitioner.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 Petition denied by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 Case: 10-2410 Document: 14 Date Filed: 03/04/2011 Page: 2 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 Case: 10-2410 Document: 14 Date Filed: 03/04/2011 Page: 3 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 3

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