UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7788
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICHAEL ALLEN KOKOSKI,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. David A. Faber, Chief
District Judge. (CR-92-90)
No. 04-7837
In Re: MICHAEL ALLEN KOKOSKI,
Petitioner.
On Petition for Writ of Mandamus. (CR-92-90)
Submitted: February 24, 2005 Decided: March 23, 2005
Before NIEMEYER, WILLIAMS, and KING, Circuit Judges.
No. 04-7788 dismissed; No. 04-7837 petition denied by unpublished
per curiam opinion.
Michael Allen Kokoski, Appellant/Petitioner Pro Se. Michael Lee
Keller, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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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 (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
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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
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