In Re: Hoyte v. , 288 F. App'x 119 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1346
In Re: OBED HOYTE,
Petitioner.
On Petition for Writ of Mandamus.
(3:93-cr-00010-jpj-mfu-1; 3:07-cv-80005-jpj-mfu)
Submitted: July 31, 2008 Decided: August 7, 2008
Before NIEMEYER, TRAXLER, and GREGORY, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Obed Hoyte, Petitioner Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Obed Hoyte petitions for a writ of mandamus or, in the
alternative, an extension of time to file a motion pursuant to 28
U.S.C. § 2255 (2000). We conclude that Hoyte is not entitled to
the relief sought.
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). Further, mandamus is a
drastic remedy and should only be used in extraordinary
circumstances. Kerr v. United States Dist. Court, 426 U.S. 394,
402 (1976); In re Beard, 811 F.2d 818, 826 (4th Cir. 1987).
Mandamus may not be used as a substitute for appeal. In re United
Steelworkers, 595 F.2d 958, 960 (4th Cir. 1979).
The relief sought by Hoyte is not available by way of
mandamus. Nor has Hoyte otherwise established entitlement to file
a § 2255 motion at this juncture. Accordingly, we deny Hoyte’s
motion to proceed in forma pauperis, and 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
the court and argument would not aid the decisional process.
PETITION DENIED
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