In Re Arthur Moates

923 F.2d 849, 1991 U.S. App. LEXIS 7646, 1991 WL 7277

• Court: Court of Appeals for the Fourth Circuit
• Decided: January 29, 1991
• Docket: 90-8057
• Status: Unpublished

Opinion

923 F.2d 849
Unpublished Disposition

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.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

No. 90-8057.

United States Court of Appeals, Fourth Circuit.

Submitted Jan. 7, 1991.
Decided Jan. 29, 1991.

On Petition for Writ of Mandamus. (CR-86-92)

Arthur Moates, petitioner pro se.

PETITION DENIED.

Before DONALD RUSSELL, WIDENER and K.K. HALL, Circuit Judges.

PER CURIAM:

Arthur Moates brought this mandamus petition seeking an order directing the district court to hold an immediate evidentiary hearing on his 28 U.S.C. Sec. 2255 petition. Moates's Sec. 2255 motion was last acted upon in December 1990. Because it has been less than six months since Moates's motion received judicial attention, we hold that there has not been undue delay. Regarding Moates's desire to have this Court order the district court to hold an evidentiary hearing, we note if the district court does not hold a hearing, Moates may appeal the district court's final order. Mandamus relief cannot be used as a substitute for appeal. In re United Steelworkers, 595 F.2d 958, 960 (4th Cir.1979). Accordingly, we grant permission to proceed in forma pauperis and deny mandamus relief. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not significatly aid in the decisional process.