Dehoney v. Calloway ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MICHAEL F. DEHONEY,
Plaintiff-Appellant,
v.
No. 97-7697
MARK T. CALLOWAY, US Attorney
for the Western District of North
Carolina,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, District Judge.
(CA-97-3-3-MU)
Submitted: April 28, 1998
Decided: June 30, 1998
Before LUTTIG, MICHAEL, and MOTZ, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Michael F. Dehoney, Appellant Pro Se.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Michael F. Dehoney applied to the district court for a writ of man-
damus compelling Mark Calloway, United States Attorney for the
Western District of North Carolina, to present criminal charges
"against three mortgage companies, their attorney, and several federal
judges," to a grand jury. Dehoney relies on 18 U.S.C. § 3332(a)
(1994), to support the contention that he is entitled to the requested
relief. This provision of the Organized Crime Control Act of 1970
provides that a special grand jury summoned pursuant to 18 U.S.C.A.
§ 3331 (West 1985 & Supp. 1998), shall inquire into offenses of the
criminal laws committed within the district, and brought to its atten-
tion by the court or any attorney appearing on behalf of the United
States. "Any such attorney receiving information concerning such an
alleged offense from any other person shall, if requested by such other
person, inform the grand jury of such alleged offense, the identity of
such other person, and such attorney's action or recommendation."
The district court denied Dehoney's petition for a writ of mandamus
on the ground that the decision to indict rests solely with the United
States Attorney, and cannot be compelled by the court.
Mandamus is a drastic remedy to be used only in extraordinary cir-
cumstances. Kerr v. United States Dist. Court , 426 U.S. 394, 402
(1976). To obtain mandamus relief, a petitioner bears the burden of
showing that his right to the relief sought is indisputable, that the
respondent has a clear duty to perform the requested act, and that peti-
tioner has no other avenues of relief. See In re First Fed. Sav. & Loan
Ass'n, 860 F.2d 135, 138 (4th Cir. 1988). Even if the party establishes
these prerequisites, a court has discretion to decide whether to issue
the writ. Marquez-Ramos v. Reno, 69 F.3d 477, 479 (10th Cir. 1995).
We review the district court's denial of mandamus for abuse of dis-
cretion. Id.Here, Dehoney has not demonstrated that he is entitled to the
requested relief. Although Dehoney has asserted that there was a
grand jury sitting at the time he made his request to Calloway and to
the district court, he has not established that it was a special grand
jury, summoned pursuant to 18 U.S.C. § 3331. Thus Dehoney has not
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indisputably established that he is entitled to the relief he seeks, or
that Calloway has a clear duty to perform the requested act.* There-
fore, we conclude that the district court did not abuse its discretion in
refusing to issue a writ of mandamus.
We affirm the judgment of the district court. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED
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*We note that one circuit has held a private party does not have stand-
ing to enforce the duty set out in § 3332(a). Sargeant v. Dixon, 130 F.3d
1067, 1069-70 (D.C. Cir. 1997). We express no opinion on the question.
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