In Re: Clyde Whitley v. ( 2014 )

Dismissed by Supreme Court, October 20, 2014
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1276
In Re: CLYDE KIRBY WHITLEY,
Petitioner.
On Petition for Writ of Mandamus.
Submitted: June 26, 2014 Decided: July 1, 2014
Before WILKINSON, KING, and GREGORY, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Clyde Kirby Whitley, Petitioner Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Clyde Kirby Whitley petitions for a writ of mandamus
seeking an order clarifying that his North Carolina breaking or
entering convictions do not qualify as predicate felonies for
purposes of the Armed Career Criminal Act. In the alternative,
Whitley requests that this court vacate those convictions. We
conclude that Whitley is not entitled to mandamus relief. *
Mandamus relief is a drastic remedy and should be used
only in extraordinary circumstances. Kerr v. United States
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).
Whitley does not have a clear right to the relief
sought, as we have consistently held that a North Carolina
conviction for breaking or entering is categorically a violent
felony, United States v. Thompson, 588 F.3d 197, 202 (4th Cir.
2009); United States v. Thompson, 421 F.3d 278, 284 (4th Cir.
2005); United States v. Bowden, 975 F.2d 1080, 1084-85 (4th Cir.
*
We also conclude that Whitley is not entitled to relief
under the All Writs Act, 28 U.S.C. § 1651(a) (2012), and deny
his motions to enforce judgment, to enforce plea agreement, for
clarification, and for appointment of counsel.
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1992), and Descamps v. United States, 133 S. Ct. 2276 (2013),
does not alter that conclusion. United States v. Mungro, ___
F.3d ___, ___, No. 13-4503, 2014 WL 2600075, at *4 (4th Cir.
June 11, 2014).
We also deny Whitley’s request to vacate his breaking
or entering convictions, as this court does not have
jurisdiction to grant mandamus relief against state officials,
Gurley v. Superior Court of Mecklenburg Cnty., 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 Whitley is not available by way
of mandamus. 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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