In Re: Smith v.

325 F. App'x 165

Opinion

PER CURIAM:

David Lee Smith petitions for a writ of mandamus seeking an order to direct the district court to review the denial of his 28 U.S.C.A. § 2255 (West Supp.2008) motion. 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, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976); In re Beard, 811 F.2d 818, 826 (4th Cir.1987).

Mandamus may not be used as 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, although we grant leave to proceed in forma pau-peris, 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.