UNPUBLISHED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Petition denied by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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