In Re: Alfonzo Avery Blackburn

37 F.3d 1492, 1994 U.S. App. LEXIS 34794, 1994 WL 564688

• Court: Court of Appeals for the Fourth Circuit
• Decided: October 17, 1994
• Docket: 94-8032
• Status: Published

Opinion

37 F.3d 1492
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

In Re: Alfonzo Avery BLACKBURN, Petitioner.

No. 94-8032.

United States Court of Appeals, Fourth Circuit.

Submitted Aug. 25, 1994.
Decided Oct. 17, 1994.

On Petition for Writ of Mandamus.

Alfonzo Avery Blackburn, Petitioner Pro Se.

PETITION DENIED.

Before RUSSELL and MICHAEL, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

PER CURIAM:

Alfonzo Blackburn, a federal prisoner, brought this petition for a writ of mandamus seeking to vacate a sentence that Blackburn alleges was erroneously calculated. Mandamus relief is only available when there are no other means by which the relief sought could be granted. In re Beard, 811 F.2d 818, 826 (4th Cir.1987). Blackburn forfeited appellate review of his conviction and sentence by voluntarily withdrawing his direct appeal and by failing to timely appeal the district court's denial of his subsequent motion filed pursuant to 28 U.S.C. Sec. 2255 (1988). Because mandamus cannot be used as a substitute for appeal, In re United Steelworkers, 595 F.2d 958, 960 (4th Cir.1979), we deny Blackburn's petition. We also grant Blackburn leave to proceed in forma pauperis and deny his motion for appointment of counsel. 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.