In re: Henry Miller

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to proceed in forma pauperis [1000306187-2]; denying Motion for writ of mandamus [1000306182-2] Originating case number: 6:04-cr-00022-JMC, 6:17-cv-00805-JMC. Copies to all parties and the district court/agency. [1000334956].. [18-1627]

Appeal: 18-1627

Doc: 10

Filed: 07/24/2018

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 18-1627

In Re: HENRY EARL MILLER,
Petitioner.

On Petition for Writ of Mandamus. (6:04-cr-00022-JMC; 6:17-cv-00805-JMC)

Submitted: July 19, 2018

Before WILKINSON, MOTZ, and AGEE, 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Petition denied by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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: July 24, 2018

Appeal: 18-1627

Doc: 10

Filed: 07/24/2018

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PER CURIAM:
Henry Earl Miller petitions for a writ of mandamus, alleging that the district court
has unduly delayed in ruling on his 28 U.S.C. § 2255 (2012) motion and seeking an order
from this court directing the district court to act, and seeking an order recusing the district
court judge. With respect to Miller’s allegation that the district court has unduly delayed
acting on his § 2255 motion, our review of the district court’s docket reveals that the
district court denied Miller’s motion on June 12, 2018.
With respect to Miller’s request for an order disqualifying the district court judge,
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). Finally, mandamus may not be used as a substitute for appeal. In re Lockheed
Martin Corp., 503 F.3d 351, 353 (4th Cir. 2007). Here, Miller has not appealed the
district court’s order denying his motion for recusal of the district court judge.
Accordingly, we grant leave to proceed in forma pauperis, deny Miller’s petition
alleging undue delay as moot, and deny Miller’s petition seeking recusal of the district
court judge. 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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