United States v. Terry

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-1121

In Re: GARY IVAN TERRY,

Petitioner.

On Petition for Writs of Mandamus and Prohibition. (1:03-cr-00299-NCT-1)

Submitted: June 29, 2009 Decided: July 15, 2009

Before TRAXLER, Chief Judge, and KING and DUNCAN, Circuit Judges.

Petition denied by unpublished per curiam opinion.

Gary Ivan Terry, Petitioner Pro Se.

Unpublished opinions are not binding precedent in this circuit.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

Gary Ivan Terry petitions for writs of mandamus and

prohibition requesting this court to compel the district court

to vacate its order refusing to compel specific performance of

his plea agreement. We conclude that Terry is not entitled to

relief.

Mandamus and prohibition relief are 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); In re Vargas, 723 F.2d 1461, 1468 (10th Cir. 1983).

Further, mandamus and prohibition are drastic remedies and

should be used only in extraordinary circumstances. Kerr v.

United States Dist. Court, 426 U.S. 394, 402 (1976); Vargas, 723

F.2d at 1468; In re Beard, 811 F.2d 818, 826 (4th Cir. 1987).

It is well-established that mandamus and prohibition may not be

used as a substitute for appeal. Vargas, 723 F.2d at 1461; In

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

The relief sought by Terry is not available by way of

mandamus or prohibition. Accordingly, although we grant leave

to proceed in forma pauperis, we deny Terry’s motion for

transcripts at government expense, and deny the petition for

writs of mandamus and prohibition. We dispense with oral

argument because the facts and legal contentions are adequately

2 presented in the materials before the court and argument would

not aid the decisional process.

PETITION DENIED