In Re: Smith v.

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-2332

In Re: DAVID LEE SMITH,

Petitioner.

On Petition for Writ of Mandamus. (5:08-hc-02165-D)

Submitted: March 17, 2009 Decided: March 19, 2009

Before TRAXLER, KING, and AGEE, Circuit Judges.

Petition denied by unpublished per curiam opinion.

David Lee Smith, Petitioner Pro Se.

Unpublished opinions are not binding precedent in this circuit.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

David Lee Smith petitions for a writ of mandamus

seeking an order directing the district court to hold an

evidentiary hearing. We conclude that Smith is not entitled to

mandamus relief. 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).

Further, mandamus is a drastic remedy and should only be used 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 may not be used as a substitute for appeal.

In re United Steelworkers, 595 F.2d 958, 960 (4th Cir. 1979).

The relief sought by Smith is not available by way of mandamus.

Accordingly, we deny the petition for writ of mandamus. 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.

PETITION DENIED