In re: Proctor v.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 00-6081 In Re: MAURICE CORTEZ PROCTOR, Petitioner. On Petition for Writ of Mandamus. (CR-85-547-Y, CA-99-1191-Y) Submitted: February 24, 2000 Decided: March 6, 2000 Before MOTZ and KING, Circuit Judges, and BUTZNER, Senior Circuit Judge. Petition denied by unpublished per curiam opinion. Maurice Cortez Proctor, Petitioner Pro Se. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Maurice Cortez Proctor brought this petition for writ of man- damus requesting this court to order the district court to enter- tain and hear his motion pursuant to Federal Rule of Civil Pro- cedure 60(b), in which he seeks to vacate his judgment and sentence and to be resentenced. The district court construed the motion as one pursuant to 28 U.S.C.A. § 2255 (West Supp. 1999), and dismissed it without prejudice to Proctor’s ability to move in the court of appeals for authorization to file a successive § 2255 motion. See 28 U.S.C.A. § 2244 (West 1994 & Supp. 1999). Proctor has not met his burden of showing that he has “no other adequate means to attain the relief he desires” and that his right to such relief is “clear and indisputable.” See Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980). Proctor could have noted an appeal from the district court’s order, see In re United Steelworkers, 595 F.2d 958, 960 (4th Cir. 1979) (mandamus not a substitute for appeal), or he could file a motion in this court seeking authorization to file a successive § 2255 motion. There- fore, although we grant leave to proceed in forma pauperis, 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 deci- sional process. PETITION DENIED 2