In re: Henry Earl Miller

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion for writ of mandamus (FRAP 21) [1000047113-2]; granting Motion to proceed in forma pauperis (FRAP 24) [1000053494-2] Originating case number: 6:04-cr-00022-JMC-3 Copies to all parties and the district court/agency. [1000088179]. Mailed to: Henry Earl Miller FCI PETERSBURG LOW FEDERAL CORRECTIONAL INSTITUTION P. O. Box 1000 Petersburg, VA 23804-0000. [17-1363]

Appeal: 17-1363

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Filed: 05/25/2017

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 17-1363

In re: HENRY EARL MILLER, a/k/a Stef, a/k/a Stefan,
Petitioner.

On Petition for Writ of Mandamus
(6:04-cr-00022-JMC-3)

Submitted: May 23, 2017

Before KING, AGEE, and WYNN, Circuit Judges.

Petition denied by unpublished per curiam opinion.

Henry Earl Miller, Petitioner Pro Se.

Unpublished opinions are not binding precedent in this circuit.

Decided: May 25, 2017

Appeal: 17-1363

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Filed: 05/25/2017

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PER CURIAM:
Henry Earl Miller petitions for a writ of mandamus seeking an order compelling
the district court to hold a hearing on or grant his motions for a new trial, an order
holding the Government in breach of the plea agreement, and vacatur of Miller’s
convictions from his 2005 criminal judgment. We conclude that Miller 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 Miller 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. 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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