In re: Joseph D. Midyette

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to proceed in forma pauperis (FRAP 24) [999641697-2]; denying Motion for writ of mandamus (FRAP 21) [999634005-2] Originating case number: 5:15-hc-02108-D Copies to all parties and the district court/agency. [999683968]. Mailed to: Joseph Dixon Midyette MAURY CORRECTIONAL INSTITUTION P. O. Box 506 Maury, NC 28554-0000. [15-1864]

Appeal: 15-1864

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Filed: 10/22/2015

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-1864

In re:

JOSEPH D. MIDYETTE,
Petitioner.

On Petition for Writ of Mandamus.
(No. 5:15-hc-02108-D)

Submitted:

October 20, 2015

Decided:

October 22, 2015

Before MOTZ, KEENAN, and THACKER, Circuit Judges.

Petition denied by unpublished per curiam opinion.

Joseph D. Midyette, Petitioner Pro Se.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 15-1864

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Filed: 10/22/2015

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PER CURIAM:
Joseph D. Midyette petitions for a writ of mandamus seeking
an order compelling the district court to hold an evidentiary
hearing on Midyette’s 28 U.S.C. § 2254 (2012) petition, on which
the district court has already denied relief.

We conclude that

Midyette 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).
The relief sought by Midyette is not available by way of
mandamus.

Accordingly, although we grant leave to proceed in

forma pauperis, we deny the petition for writ of mandamus.
dispense

with

contentions

are

oral

argument

adequately

because

presented

in

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the

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We

and

legal

materials

before

this court and argument would not aid the decisional process.

PETITION DENIED

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