In Re: David Smith

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motions for leave to proceed PLRA [999660689-2], [999618012-2]; denying Motions for writ of mandamus (FRAP 21) [999660688-2], [999654981-2], [999634427-2], [999629834-2], [999618009-2]; Originating case number: 5:15-hc-02128-D Copies to all parties and the district court/agency. [999683897]. Mailed to: David Smith. [15-1763]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-1763

In re:

DAVID LEE SMITH,
Petitioner.

On Petition for Writ of Mandamus.
(No. 5:15-hc-02128-D)

Submitted:

October 20, 2015

Decided:

October 22, 2015

Before MOTZ, KEENAN, and THACKER, Circuit Judges.

Petition denied by unpublished per curiam opinion.

David Lee Smith, Petitioner Pro Se.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
David Smith, a North Carolina inmate, petitions for a writ
of mandamus directing the district court to direct the state
court to either hold an evidentiary hearing on the merits of his
challenges

to

convictions.

his

criminal

judgment

or

set

aside

his

He also seeks an order from this court directing

the district court to rule on his motions for immediate release
and for a preliminary injunction.

The district court recently

dismissed Smith’s 28 U.S.C. § 2254 (2012) petition as successive
and denied the motions.

We conclude that Smith is not entitled

to mandamus relief.
Mandamus relief is a drastic remedy and should be used only
in extraordinary circumstances.

Kerr v. U.S. Dist. Court, 426

U.S. 394, 402 (1976); United States v. Moussaoui, 333 F.3d 509,
516-17 (4th Cir. 2003).

Further, mandamus relief is available

only when the petitioner has a clear right to the relief sought.
In re First Fed. Sav. & Loan Ass’n, 860 F.2d 135, 138 (4th Cir.
1988).
Mandamus may not be used as a substitute for appeal.

In re

Lockheed Martin Corp., 503 F.3d 351, 353 (4th Cir. 2007).
addition,

the

district

court

has

ruled

on

the

motions

In

Smith

identified in his mandamus petition, rendering the request moot.
The relief sought by Smith is not available by way of mandamus.
Accordingly,

although

we

grant
2

leave

to

proceed

in

forma

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pauperis, we deny the petition for writ of mandamus, amended
petition, and supplemental petitions.

We dispense with oral

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

PETITION DENIED

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