In Re: David L. Smith

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to proceed in forma pauperis (FRAP 24) [999677332-2]; denying Motion for writ of mandamus (FRAP 21) [999677329-2]; denying Motion for summary disposition (Local Rule 27(f)) [999685653-2]; denying Motion for other relief [999685651-2] Originating case number: 5:15-ct-03172-FL Copies to all parties and the district court/agency. [999704497]. Mailed to: David L. Smith. [15-2222]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-2222

In re:

DAVID LEE SMITH,
Petitioner.

On Petition for Writ of Mandamus.
(No. 5:15-ct-03172-FL)

Submitted:

November 19, 2015

Decided:

November 23, 2015

Before NIEMEYER, KING, and HARRIS, 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Petition denied by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

construe

his

previously adjudicated 28 U.S.C. § 2254 (2012) petition as a 28
U.S.C.
North

§ 2241

(2012)

Carolina

conclude

that

to

petition

commute

Smith

is

and

his

directing

sentence
entitled

not

to
to

the
time

Governor
served.

mandamus

of
We

relief.

Mandamus relief is a drastic remedy and should be used only in
extraordinary circumstances.
394,

402

(1976);

United

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

States

516-17 (4th Cir. 2003).

v.

Moussaoui,

333

F.3d

509,

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

In re
The

relief sought by Smith 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 and all
Smith’s pending motions, including motions for release pending
appeal

and

for

summary

disposition.

We

dispense

with

oral

argument because the facts and legal contentions are adequately

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presented in the materials before this court and argument would
not aid the decisional process.

PETITION DENIED

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