In re: Richard Montgomery


UNPUBLISHED PER CURIAM OPINION filed. Motion dispositions in opinion--denying Motion for writ of mandamus (FRAP 21) [1000015114-2]; granting Motion to proceed in forma pauperis (FRAP 24) [1000023571-2]. Originating case number: 3:16-cv-00056-GMG-MJA. Copies to all parties and the district court. [1000055365]. Mailed to: Petitioner. [17-1143]

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Appeal: 17-1143 Doc: 10 Filed: 04/04/2017 Pg: 1 of 2 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 17-1143 In Re: RICHARD MONTGOMERY, Petitioner. On Petition for Writ of Mandamus. (3:16-cv-00056-GMG-MJA) Submitted: March 30, 2017 Decided: April 4, 2017 Before TRAXLER and WYNN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Petition denied by unpublished per curiam opinion. Richard Montgomery, Petitioner Pro Se. Unpublished opinions are not binding precedent in this circuit. Appeal: 17-1143 Doc: 10 Filed: 04/04/2017 Pg: 2 of 2 PER CURIAM: Richard Montgomery petitions for a writ of mandamus, seeking an order requiring the district court to order the Government to show cause why Montgomery’s 28 U.S.C. § 2241 (2012) petition should not be granted. We conclude that Montgomery 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). When a prisoner petitions for a writ of habeas corpus, the district court must either grant the motion or “issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant . . . is not entitled thereto.” 28 U.S.C. § 2243 (2012). In this case, the magistrate judge recently issued a report and recommendation concluding that Montgomery is not entitled to habeas relief. Accordingly, although we grant leave to proceed in forma pauperis, we deny the petition for writ of mandamus. 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 2

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