In Re: Hicks v. ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-6794
IN RE: CLARENCE HICKS,
Petitioner.
On Petition for Writ of Mandamus.
(CA-02-2076-L)
Submitted: September 29, 2005 Decided: October 11, 2005
Before WILKINSON, KING, and GREGORY, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Clarence Hicks, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Clarence Hicks petitions this court for writ of mandamus.
The district court entered an order in March 2005 dismissing
Hicks’s 28 U.S.C. § 2255 (2000) motion to vacate his conviction.
Hicks asks us to direct the district court to address a claim of
actual innocence that he claims the district court failed to
consider. Hicks further states that the district court failed to
file his notice of appeal.
Mandamus relief is available only when the petitioner has
a clear right to the relief sought. See 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. See Kerr v. United States Dist. Court, 426 U.S.
394, 402 (1976); In re Beard, 811 F.2d 818, 826 (4th Cir. 1987).
There is nothing here or in the district court to show
that Hicks filed a notice of appeal, and he does not submit a copy
of such a notice. Therefore, Hicks has not shown a clear right to
have a notice of appeal filed in the district court. As to the
actual innocence claim, mandamus may not be used as a substitute
for appeal. See In re United Steelworkers, 595 F.2d 958, 960 (4th
Cir. 1979).
Therefore, we deny the petition for writ of mandamus. We
dispense with oral argument because the facts and legal contentions
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are adequately presented in the materials before the court and
argument would not aid the decisional process.
PETITION DENIED
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