In Re: Kokoski v. , 195 F. App'x 153 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-7373
In Re: MICHAEL ALLEN KOKOSKI,
Petitioner.
No. 06-6083
In Re: MICHAEL ALLEN KOKOSKI,
Petitioner.
On Petitions for Writ of Mandamus.
(CA-01-944-5; 5:01-944)
Submitted: July 28, 2006 Decided: August 23, 2006
Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges.
Petitions denied by unpublished per curiam opinion.
Michael Allen Kokoski, Petitioner Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
In these consolidated requests for mandamus relief,
Michael Allen Kokoski chiefly alleges undue delay in the district
court. In No. 05-7373, Kokoski requests that we find that his
criminal conviction was secured by fraud on the court, overturn the
district court’s dismissal of his 28 U.S.C. § 2255 (2000) motion as
untimely, and direct the district court to rule on an outstanding
motion to reopen his § 2255 proceeding.1 In No. 06-6083, Kokoski
requests that we direct the district court to rule on his
outstanding motion to be relieved from the district court’s October
2003 order dismissing his § 2255 motion as untimely.2 For the
reasons stated below, we deny both petitions for mandamus relief.
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 be used only 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).
Mandamus may not be used as a substitute for appeal. See In re
United Steelworkers, 595 F.2d 958, 960 (4th Cir. 1979). We
conclude that Kokoski’s request that we invalidate his criminal
1
The Government filed a response to this petition at our
direction.
2
We grant Kokoski’s motion to proceed in forma pauperis in No.
06-6083.
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conviction and reverse the district court’s denial of his § 2255
motion as untimely is not available by way of mandamus. We
therefore deny this portion of Kokoski’s petition for writ of
mandamus.
As for Kokoski’s motions to reopen his § 2255 motion and
to be relieved from the operation of a judgment, the district court
has denied these motions. Accordingly, any allegations of undue
delay in the district court’s action on those motions are now moot.
We deny Kokoski’s request for a certificate of appealability. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
PETITIONS DENIED
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