In re: James Faller, II

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to proceed in forma pauperis [1000288671-2]; denying Motion for writ of mandamus [1000288670-2]. Originating case number: 1:17-cv-00048-IMK. Copies to all parties and the district court. [1000313707]. Mailed to: James Faller, II. [18-1505]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 18-1505

In re: JAMES S. FALLER, II,
Petitioner.

On Petition for Writ of Mandamus. (1:17-cv-00048-IMK)

Submitted: June 14, 2018

Before TRAXLER, DUNCAN, and WYNN, Circuit Judges.

Petition denied by unpublished per curiam opinion.

James S. Faller, II, Petitioner Pro Se.

Unpublished opinions are not binding precedent in this circuit.

Decided: June 18, 2018

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PER CURIAM:
James S. Faller, II, petitions for a writ of mandamus, alleging the district court has
unduly delayed in acting on his 28 U.S.C. § 2241 (2012) petition. He seeks an order
from this court directing the district court to immediately issue a writ of habeas corpus or
to hold a hearing and release him from prison. We conclude that Faller 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). 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). Our review of the district court’s docket
reveals that the district court adopted the recommendation of the magistrate judge and
denied Faller’s § 2241 petition on May 10, 2018. Accordingly, to the extent Faller seeks
mandamus relief based on undue delay by the district court, his petition is moot.
Further, mandamus may not be used as a substitute for appeal. In re Lockheed
Martin Corp., 503 F.3d 351, 353 (4th Cir. 2007). Relief in the form of an order from this
court directing the district court to issue a writ of habeas corpus or to hold a hearing and
release Faller from prison is not available by way of mandamus. Accordingly, although
we grant leave to proceed in forma pauperis, we deny the petition for a writ of
mandamus.

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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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