UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-6688
In Re: JOHN PATRICK MCSHEFFREY,
Petitioner.
No. 04-6697
JOHN PATRICK MCSHEFFREY,
Petitioner - Appellant,
versus
UNITED STATES OF AMERICA,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Robert E. Payne, District Judge.
(CR-92-76; CA-92-729)
Submitted: November 30, 2004 Decided: January 6, 2005
Before LUTTIG, SHEDD, and DUNCAN, Circuit Judges.
No. 04-6688: Petition denied; No. 04-6697: Affirmed in part;
dismissed in part by unpublished per curiam opinion.
John Patrick McSheffrey, Appellant Pro Se. George Maralan Kelley,
III, Assistant United States Attorney, Mark Anthony Exley, OFFICE
OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
John Patrick McSheffrey appeals the district court’s
order denying his motion to vacate its September 1992 order, his
motion for the return of property, and his motion for grand jury
transcripts. With respect to his motion to vacate, properly deemed
a motion for reconsideration under Fed. R. Civ. P. 60(b), the order
is not appealable unless a circuit justice or judge issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000);
Reid v. Angelone, 369 F.3d 363, 368-69 (4th Cir. 2004) (holding
that appeal from the denial of a Rule 60(b) motion in a habeas
action requires a certificate of appealability). A certificate of
appealability will not issue absent “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000).
A prisoner satisfies this standard by demonstrating that reasonable
jurists would find that his constitutional claims are debatable and
that any dispositive procedural rulings by the district court are
also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322,
336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v.
Lee, 252 F.3d 676, 683 (4th Cir. 2001). We have independently
reviewed the record and conclude that McSheffrey has not made the
requisite showing. Accordingly, we deny a certificate of
appealability and dismiss that portion of the appeal.
With respect to the denial of McSheffrey’s motions for
the return of property and to inspect grand jury transcripts, we
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have reviewed the record and the court’s order and find no
reversible error. Accordingly, we affirm for the reasons stated by
the district court. See United States v. McSheffrey, Nos. CR-92-
76, CA-92-729 (E.D. Va. Mar. 29, 2004).
McSheffrey also petitions this Court for a writ of
mandamus seeking an order directing the district court to vacate
its September 1992 order. Mandamus is a drastic remedy to be used
only in extraordinary circumstances. Kerr v. United States Dist.
Court, 426 U.S. 394, 402 (1976). In seeking mandamus relief,
McSheffrey carries the heavy burden of showing that he has no other
adequate means to attain the relief sought and that his right to
such relief is clear and indisputable. In re First Fed. Sav. &
Loan Ass’n, 860 F.2d 135, 138 (4th Cir. 1988). We find that
McSheffrey has failed to meet this burden. Accordingly, we deny
the mandamus petition. While we grant McSheffrey’s motions to file
supplemental authorities pursuant to Fed. R. App. P. 28(j) and to
proceed on appeal in forma pauperis, we deny his motions for oral
argument, for clarification and/or more definite statement, and to
place the case in abeyance for United States v. Booker, 2004 WL
1713654 (cert. granted, Aug. 2, 2004, argued Oct. 4, 2004) (No. 04-
104), and United States v. Fanfan, 2004 WL 1713655 (cert. granted,
Aug. 2, 2004, argued Oct. 4, 2004) (No. 04-105). We dispense with
oral argument because the facts and legal contentions are
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adequately presented in the materials before the court and argument
would not aid the decisional process.
No. 04-6688: PETITION DENIED
No. 04-6697: AFFIRMED IN PART;
DISMISSED IN PART
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