UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7235
IN RE: CORNELIUS TUCKER, JR.,
Petitioner.
On Petition for Writ of Mandamus. (CA-02-235-5)
Submitted: November 18, 2004 Decided: November 30, 2004
Before LUTTIG and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Petition denied by unpublished per curiam opinion.
Cornelius Tucker, Jr., Petitioner Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Cornelius Tucker, Jr., faces pending charges in the
Eastern District of North Carolina. The district court ordered
that Tucker be examined to determine his competence to stand trial.
Tucker petitions this court for writ of mandamus directing the
district court to expedite the examination and order a magnetic
resonance imaging scan. Tucker also wants the examination
conducted at a federal prison facility rather than a jail. Tucker
requests that counsel, his seventh so far in this proceeding, be
dismissed and the judge be recused.
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 be used only in extraordinary situations.
See Kerr v. U.S. 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. See In re United Steelworkers, 595
F.2d 958, 960 (4th Cir. 1979). In light of these principles, the
relief sought by Tucker is not available through mandamus. To the
extent Tucker asserts bias by the district judge, he has not
demonstrated extrajudicial bias warranting recusal. Beard, 811
F.2d at 827.
Therefore, although we grant leave to proceed in forma
pauperis, we deny the petition for mandamus. We dispense with oral
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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
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