In re: Henry Earl Miller


UNPUBLISHED PER CURIAM OPINION filed.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]

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Appeal: 17-1363 Doc: 7 Filed: 05/25/2017 Pg: 1 of 2 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 17-1363 In re: HENRY EARL MILLER, a/k/a Stef, a/k/a Stefan, Petitioner.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 Petition denied by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 Doc: 7 Filed: 05/25/2017 Pg: 2 of 2 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 2

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