In Re: Propst v.

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 1, 2001
• Docket: 00-7640
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 00-7640

In Re: PHILLIP M. PROPST,

Petitioner.

On Petition for Writ of Mandamus.

Submitted: February 22, 2001 Decided: March 1, 2001

Before WIDENER and WILLIAMS, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Petition denied by unpublished per curiam opinion.

Phillip M. Propst, Petitioner Pro Se.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM:

Phillip Propst has filed a petition for a writ of mandamus

from this court seeking to challenge his state conviction. Manda-

mus is a drastic remedy to be used only in extraordinary circum-

stances. Kerr v. United States Dist. Court, 426 U.S. 394, 402

(1976). 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), 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). Propst has not made such a showing. A peti-

tion filed pursuant to 28 U.S.C.A. § 2254 (West 1994 & Supp. 2000)

is the proper vehicle to attack his conviction. Propst has previ-

ously filed such a petition. Accordingly, we deny Propst’s motion

to proceed in forma pauperis and his petition for mandamus relief.

We dispense with oral argument because the facts and legal conten-

tions are adequately presented in the materials before the court

and argument would not aid the decisional process.

PETITION DENIED