In re: Terry

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-2410
In Re: GARY IVAN TERRY,
Petitioner.
On Petition for Writ of Mandamus.
(1:03-cr-00299-NCT-1)
Submitted: February 28, 2011 Decided: March 4, 2011
Before TRAXLER, Chief Judge, and KING and DIAZ, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Gary Ivan Terry, Petitioner Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gary Ivan Terry petitions for a writ of mandamus
seeking an order from this court directing the district court
judge to: (1) vacate its orders denying Terry’s motions for
recusal; (2) vacate the order denying Terry’s 28 U.S.C.A. § 2255(West Supp. 2010) motion; and (3) grant Terry’s motion for an
evidentiary hearing. He has also filed an emergency motion
seeking to have this court vacate the district court’s order
denying Terry’s motion for recusal and vacate his conviction and
sentence imposed in Missouri. We conclude that Terry is not
entitled to relief.
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). Further,
mandamus is a drastic remedy and should be used only in
extraordinary circumstances. Kerr v. United States Dist. Court,
426 U.S. 394, 402 (1976); In re Beard, 811 F.2d 818, 826 (4th
Cir. 1987). It is well-established that mandamus may not be
used as a substitute for appeal. In re United Steelworkers, 595
F.2d 958, 960 (4th Cir. 1979).
The relief sought by Terry is not available by way of
mandamus. Accordingly, although we grant leave to proceed in
forma pauperis, we deny Terry’s motion for emergency relief and
we deny Terry’s petition for a writ of mandamus. We dispense
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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.
PETITION DENIED
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