In Re: Jones v.

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 05-6309

In Re: WENDALL A. JONES,

Petitioner.

On Petition for Writ of Mandamus. (CA-04-566)

Submitted: June 17, 2005 Decided: July 18, 2005

Before LUTTIG, KING, and GREGORY, Circuit Judges.

Petition denied by unpublished per curiam opinion.

Wendall A. Jones, Petitioner Pro Se.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

Wendell A. Jones petitions for writ of mandamus, asking

this court to direct the magistrate judge* to compel discovery in

his 28 U.S.C. § 2254 (2000) action and to defer or set aside any

judgment in that action until discovery has occurred. He also

seeks an order compelling the magistrate judge to respond to his

motion for partial summary judgment and an extension of time to

respond to the respondent’s motion to dismiss.

Mandamus is a drastic remedy to be used only in

extraordinary circumstances. Kerr v. United States Dist. Court,

426 U.S. 394, 402 (1976). Mandamus relief is available only when

there are no other means by which the relief sought could be

granted, In re Beard, 811 F.2d 818, 826 (4th Cir. 1987), and may

not be used as a substitute for appeal, In re Catawba Indian Tribe,

973 F.2d 1133, 1136 (4th Cir. 1992). The party seeking mandamus

relief bears the heavy burden of showing that he has no other

adequate means to obtain the relief sought and that his entitlement

to relief is “clear and indisputable.” Allied Chem. Corp. v.

Daiflon, Inc., 449 U.S. 33, 35 (1980).

Our review of the district court’s docket sheet reveals

that, after Jones filed his mandamus petition, the magistrate judge

denied Jones’ motion for partial summary judgment and dismissed his

*
Pursuant to 28 U.S.C. § 636(c) (2000), the parties consented
to the jurisdiction of a magistrate judge.

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§ 2254 petition. Therefore, Jones’ mandamus petition is moot.

Moreover, to the extent that Jones seeks to set aside the

magistrate judge’s final order, he has another available remedy;

namely, an appeal from that order.

Accordingly, although we grant leave to proceed in forma

pauperis, we deny Jones’ 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 decisional process.

DISMISSED

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