In Re: Hicks v. ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-7614
In Re: CLARENCE HICKS,
Petitioner,
On Petition for Writ of Mandamus.
(1:98-cr-00259-BEL-9; 1:02-cv-02076-BEL)
Submitted: May 16, 2008 Decided: May 29, 2008
Before NIEMEYER and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Petition granted by unpublished per curiam opinion.
Clarence Hicks, Petitioner Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Clarence Hicks has petitioned this court for a writ of
mandamus, complaining of delay in the district court. Finding
substantial delay below, we grant the mandamus petition.
Following the district court’s ruling in a 28 U.S.C.
§ 2255 (2000) motion filed by Clarence Hicks, Hicks filed a motion
under Fed. R. Civ. P. 60(b). The district court entered an order
in April 2006 addressing Hicks’s motion, dismissing some of the
claims therein and ordering the Government to respond to the
remaining claims. The Government responded in July 2006. Hicks
sought leave of the court to reply to that response, which was
granted on August 2, 2006. No further action has been taken in the
district court regarding the Rule 60(b).
As we conclude that Hicks has established a clear and
indisputable right to expeditious treatment of his Rule 60(b)
motion, and no other adequate remedy is available, we find that he
has shown his entitlement to the writ of mandamus. See Allied
Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980); In re Beard,
811 F.2d 818, 826 (4th Cir. 1987). Therefore, the petition for
writ of mandamus is granted. The district court is ordered to act
on the Rule 60(b) motion pending in case No. 1:98-cr-00259-BEL-9;
1:02-cv-02076-BEL within sixty days of the date of this opinion.
We grant Hicks leave to proceed in forma pauperis. We dispense
with oral argument because the facts and legal contentions are
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adequately presented in the materials before the court and argument
would not aid the decisional process.
PETITION GRANTED
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