In Re Allen Ray Johnson , 900 F.2d 252 ( 1990 )

900 F.2d 252
Unpublished Disposition

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
In re Allen Ray JOHNSON, Petitioner.

No. 89-6897.

United States Court of Appeals, Fourth Circuit.

Submitted March 5, 1990.
Decided March 16, 1990.

On Petition for Writ of Mandamus. Franklin T. Dupree, Jr., Senior District Judge. (CR No. 76-42).

Allen Ray Johnson, petitioner pro se.

PETITION DENIED.

Before ERVIN, Chief Judge, and PHILLIPS and WILKINSON, Circuit Judges.

PER CURIAM:

1

Allen Ray Johnson, a federal prisoner, brought this petition for writ of mandamus seeking a "temporary remand" of his 28 U.S.C. Sec. 2255 action. The petition for relief under 28 U.S.C. Sec. 2255 was denied by the district court, and this Court affirmed the denial. United States v. Johnson, 612 F.2d 843 (4th Cir.1979). In his mandamus petition, Johnson contends that there is newly discovered evidence which warrants a remand so that the district court record can be supplemented.

2

Mandamus relief is appropriate only when there are no other means by which the petitioner could secure the requested relief. In re Beard, 811 F.2d 818, 826 (4th Cir.1987). Further, mandamus may not be used as a substitute for appeal. In re United Steelworkers, 595 F.2d 958, 960 (4th Cir.1979). Johnson may attempt to attack his convictions by filing a new 28 U.S.C. Sec. 2255 petition with the district court; he may not obtain a second review of his previous Sec. 2255 petition via mandamus. Therefore, the petition is denied. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.

PETITION DENIED