In re: Joseph D. Midyette v. ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1864
In re: JOSEPH D. MIDYETTE,
Petitioner.
On Petition for Writ of Mandamus.
(No. 5:15-hc-02108-D)
Submitted: October 20, 2015 Decided: October 22, 2015
Before MOTZ, KEENAN, and THACKER, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Joseph D. Midyette, Petitioner Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joseph D. Midyette petitions for a writ of mandamus seeking
an order compelling the district court to hold an evidentiary
hearing on Midyette’s 28 U.S.C. § 2254 (2012) petition, on which
the district court has already denied relief. We conclude that
Midyette is not entitled to mandamus relief.
Mandamus relief is a drastic remedy and should be used only
in extraordinary circumstances. Kerr v. U.S. 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). Mandamus may not be used as a substitute for appeal. In
re Lockheed Martin Corp., 503 F.3d 351, 353 (4th Cir. 2007).
The relief sought by Midyette 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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