In re: James Faller, II

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-1505

In re: JAMES S. FALLER, II,

Petitioner.

On Petition for Writ of Mandamus. (1:17-cv-00048-IMK)

Submitted: June 14, 2018 Decided: June 18, 2018

Before TRAXLER, DUNCAN, and WYNN, Circuit Judges.

Petition denied by unpublished per curiam opinion.

James S. Faller, II, Petitioner Pro Se.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

James S. Faller, II, petitions for a writ of mandamus, alleging the district court has

unduly delayed in acting on his 28 U.S.C. § 2241 (2012) petition. He seeks an order

from this court directing the district court to immediately issue a writ of habeas corpus or

to hold a hearing and release him from prison. We conclude that Faller is not entitled to

mandamus relief.

Mandamus relief is a drastic remedy and should be used only in extraordinary

circumstances. Kerr v. U.S. Dist. Court, 426 U.S. 394, 402 (1976); United States v.

Moussaoui, 333 F.3d 509, 516-17 (4th Cir. 2003). 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). Our review of the district court’s docket

reveals that the district court adopted the recommendation of the magistrate judge and

denied Faller’s § 2241 petition on May 10, 2018. Accordingly, to the extent Faller seeks

mandamus relief based on undue delay by the district court, his petition is moot.

Further, mandamus may not be used as a substitute for appeal. In re Lockheed

Martin Corp., 503 F.3d 351, 353 (4th Cir. 2007). Relief in the form of an order from this

court directing the district court to issue a writ of habeas corpus or to hold a hearing and

release Faller from prison is not available by way of mandamus. Accordingly, although

we grant leave to proceed in forma pauperis, we deny the petition for a writ of

mandamus.

2 We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before this court and argument would not aid the

decisional process.

PETITION DENIED