In Re: David Smith v. , 694 F. App'x 153 ( 2017 )


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  •                                       UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 17-1490
    In re: DAVID L. SMITH
    Petitioner.
    On Petition for Writ of Mandamus
    (No. 5:17-ct-03063-D)
    Submitted: July 27, 2017                                          Decided: July 31, 2017
    Before AGEE and FLOYD, Circuit Judges, and HAMILTON, Senior Circuit Judge.
    Petition denied by unpublished per curiam opinion.
    David Lee Smith, Petitioner Pro Se.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    David Lee Smith petitions for a writ of mandamus seeking an order directing the
    district court to review Smith’s civil cases as a first 
    28 U.S.C. § 2254
     (2012) petition, or
    in the alternative, a Fed. R. Civ. P. 60(b) motion, reduce Smith’s state sentence to time
    served, and order the state custodian to release him. We conclude that Smith 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).
    Further, this court does not have jurisdiction to grant mandamus relief against state
    officials, Gurley v. Superior Court of Mecklenburg Cty., 
    411 F.2d 586
    , 587 (4th Cir.
    1969), and does not have jurisdiction to review final state court orders, Dist. of Columbia
    Court of Appeals v. Feldman, 
    460 U.S. 462
    , 482 (1983).
    The relief sought by Smith is not available by way of mandamus. Accordingly,
    although we grant leave to proceed in forma pauperis, we deny the petition and
    supplemental petition for writ of mandamus. We dispense with oral argument because
    2
    the facts and legal contentions are adequately presented in the materials before this court
    and argument would not aid the decisional process.
    PETITION DENIED
    3
    

Document Info

Docket Number: 17-1490

Citation Numbers: 694 F. App'x 153

Judges: Agee, Floyd, Hamilton, Per Curiam

Filed Date: 7/31/2017

Precedential Status: Non-Precedential

Modified Date: 10/19/2024