United States v. Kokoski

124 F. App'x 189

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 23, 2005
• Docket: 04-7788; 04-7837
• Status: Unpublished

Opinion

PER CURIAM:

In these two consolidated cases, Michael Allen Kokoski petitions this court for a writ of mandamus, and seeks an order declaring the district court’s criminal judgment void ab initio because of fraud on the court.

In case No. 04-7837, Kokoski seeks an order directing the district court to rule on his outstanding motions and provide him with a transcript of a pretrial hearing at the Government’s expense. Mandamus relief is available only when the petitioner has a clear right to the relief sought. See In re First Fed. Sav. & Loan Assn., 860 F.2d 135, 138 (4th Cir.1988). Further, mandamus is a drastic remedy and should be used only in extraordinary circumstances. See 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 a substitute for appeal. See In re United Steelworkers, 595 F.2d 958, 960 (4th Cir.1979). The relief sought by Kokoski is not available by way of mandamus. Accordingly, although we grant leave to proceed in forma pauperis, we deny the petition for writ of mandamus.

In appeal No. 04-7788, Kokoski asserts that the Government committed fraud on the court by excluding the true object of their search from search warrant applications, and thus seeks an order declaring the district court’s criminal judgment void ab initio. However, such a claim must be filed in the district court, and is thus not properly before this court. Fed.R.Civ.P. 60(b)(3). Accordingly, we dismiss this appeal. We also deny all other outstanding motions. 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.

No. 04-7788 DISMISSED

No. 04-7837 PETITION DENIED