In Re: Whitaker v.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-7681
In Re: MARTELL WHITAKER,
Petitioner.
On Petition for Writ of Mandamus.
(CR-98-1016)
Submitted: February 3, 2006 Decided: February 28, 2006
Before MICHAEL, MOTZ, and KING, Circuit Judges.
Petition dismissed by unpublished per curiam opinion.
Martell Whitaker, Petitioner Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Martell Whitaker petitions this court for writ of
mandamus. He seeks a an order directing the district court to
conduct a jury trial of a criminal forfeiture matter. Because the
forfeiture matter has been resolved, and Whitaker is not entitled
to the relief sought, we dismiss the mandamus petition.
Whitaker was convicted by jury of money laundering
conspiracy. According to the district court’s Judgment and
Preliminary Order of Forfeiture, “[a]fter his conviction,
[Whitaker] waived his right to a trial by jury on forfeiture
allegations and agreed for the Court to decide the forfeiture
issues as they related to the money laundering conspiracy.” United
States v. Whitaker, No. 98-1016 (D.S.C. Dec. 8, 1999) (unpublished
order). The court found $60,000 in currency and a 1994 dark purple
Lexus subject to forfeiture pursuant to 18 U.S.C. § 982(a)(1)
(2000). The order further recited that if, after appropriate
publication, no third parties claimed an interest in the subject
property, the preliminary order “shall constitute a final judgment
of forfeiture.” There were no third-party claims to the property,
and the order therefore became final.
Mandamus is a drastic remedy to be used sparingly 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). Mandamus relief is available only when there are no other
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means by which the relief sought could be granted, id., and may
not be used as a substitute for appeal. In re Catawba Indian
Tribe, 973 F.2d 1133, 1135 (4th Cir. 1992). The party seeking
mandamus relief carries the heavy burden of showing that he has no
other adequate means to attain the relief he desires and that his
entitlement to such relief is clear and indisputable. Allied Chem.
Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980).
Whitaker has failed to make the requisite showing, and we
accordingly dismiss his petition for writ of mandamus. We deny the
motion for leave to proceed in forma pauperis and 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.
PETITION DISMISSED
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