In Re: David Smith

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion dispositions in opinion--denying Motion for writ of mandamus (FRAP 21) [999994453-2], denying Motion to supplement writ of mandamus (FRAP 21) [999970232-2]; denying Motions for other relief [1000004893-2], [999994010-2], [999981835-2]. Originating case number: 5:15-hc-02128-D. Copies to all parties and the district court/agency. [1000033273].. [16-2323]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-2323

In Re:

DAVID LEE SMITH,
Petitioner.

On Petition for Writ of Mandamus.
(5:15-hc-02128-D)

Submitted:

February 27, 2017

Decided:

March 1, 2017

Before TRAXLER, AGEE, 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Petition denied by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 Lee Smith petitions for a writ of mandamus seeking an
order

prohibiting

the

district

court

from

dismissing

Smith’s

Fed. R. Civ. P. 60(b) motion filed in his 28 U.S.C. § 2254
(2012)

proceeding

and

state sentence.

directing

the

court

to

reduce

Smith’s

Smith also seeks an order directing a state

corrections official to release him.

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.
Lockheed

Martin

Corp.,

503

F.3d

351,

353

(4th

Cir.

In re
2007).

Further, this court does not have jurisdiction to grant mandamus
relief

against

state

officials,

Gurley

v.

Superior

Court

of

Mecklenburg Cty., 411 F.2d 586, 587 (4th Cir. 1969), and does
not have jurisdiction to review final state court orders, Dist.
of

Columbia

Court

of

Appeals

v.

(1983).

2

Feldman,

460

U.S.

462,

482

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The
mandamus.

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relief

sought

by

Accordingly,

motions,

including

petition

and

the

Smith’s

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Smith

we

is

deny

mandamus

motions

for

not

all

available

pending

petition
release,

appeal, and for an en banc determination.

by

way

petitions

and

of
and

supplemental

release

pending

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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