In re: Myers v.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1556
In Re: MACK NEIL MYERS,
Petitioner.
On Petition for Writ of Mandamus. (0:09-cv-00738-HMH)
Submitted: September 18, 2009 Decided: October 13, 2009
Before MICHAEL and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Petition denied by unpublished per curiam opinion.
Mack Neil Myers, Petitioner Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mack Neil Myers petitions for a writ of mandamus
seeking an order directing the United States District Court for
the District of South Carolina to order (1) the Darlington
County Court to provide Myers with Brady * material; to permit
defense witnesses to testify; to appoint counsel; and (2) the
Darlington County Public Defender’s Office to provide Myers a
copy of his file. Myers also seeks an order directing the
district court “to stop ignoring [his] due process rights.” In
conjunction with his petition for writ of mandamus, Myers
requests authorization, pursuant to 28 U.S.C. § 2244 (2006), to
file a successive 28 U.S.C. § 2254 (2006) habeas petition.
We deny Myers’ petition for writ of mandamus. This
court does not have jurisdiction to grant mandamus relief
against state officials. Gurley v. Superior Court of
Mecklenburg County, 411 F.2d 586, 587 (4th Cir. 1969). Thus, we
cannot mandate that the district court order the Darlington
County Court and Darlington County Public Defender’s Office to
provide Myers the relief he seeks. Further, Myers’ request for
an order directing the district court to cease violating his due
process rights is well beyond the scope of the writ. In re
Braxton, 258 F.3d 250, 261 (4th Cir. 2001) (party seeking writ
*
Brady v. Maryland, 373 U.S. 83 (1963).
2
of mandamus must establish, inter alia, that the requested act
is an official act or an act of duty).
We further conclude Myers has not satisfied the
statutory requirement for filing a successive petition under 28
U.S.C. § 2254. In order to obtain authorization to file a
successive § 2254 petition, a prisoner must assert claims based
on either: (1) a new rule of constitutional law, previously
unavailable, made retroactive by the Supreme Court to cases on
collateral review; or (2) newly discovered evidence, not
previously discoverable by due diligence, that would be
sufficient to establish by clear and convincing evidence that,
but for constitutional error, no reasonable factfinder would
have found the petitioner guilty of the offense. 28 U.S.C.
§ 2244(b)(2). Myers’ claims do not satisfy either of these
criteria. Therefore, we deny authorization to file a successive
§ 2254 petition.
For the foregoing reasons, although we grant leave to
proceed in forma pauperis, we deny the petition for writ of
mandamus and for authorization to file a successive § 2254
petition. We further deny Myers’ pending motions for discovery,
the appointment of counsel, and reconsideration of the Clerk’s
order deferring ruling on the motion to appoint counsel. We
dispense with oral argument because the facts and legal
3
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
PETITION DENIED
4