In Re: Richard Montgomery v. , 684 F. App'x 290 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-1143
In Re: RICHARD MONTGOMERY,
Petitioner.
On Petition for Writ of Mandamus.
(3:16-cv-00056-GMG-MJA)
Submitted: March 30, 2017 Decided: April 4, 2017
Before TRAXLER and WYNN, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Petition denied by unpublished per curiam opinion.
Richard Montgomery, Petitioner Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Richard Montgomery petitions for a writ of mandamus, seeking an order requiring
the district court to order the Government to show cause why Montgomery’s 28 U.S.C.
§ 2241 (2012) petition should not be granted. We conclude that Montgomery 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).
When a prisoner petitions for a writ of habeas corpus, the district court must either
grant the motion or “issue an order directing the respondent to show cause why the writ
should not be granted, unless it appears from the application that the applicant . . . is not
entitled thereto.” 28 U.S.C. § 2243 (2012). In this case, the magistrate judge recently
issued a report and recommendation concluding that Montgomery is not entitled to habeas
relief. Accordingly, although we grant leave to proceed in forma pauperis, we 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 this court and argument would
not aid the decisional process.
PETITION DENIED
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