UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1596
In Re: JOHN D. HORTON,
Petitioner.
On Petition for Writ of Mandamus.
(CA-04-227-BO)
Submitted: August 25, 2005 Decided: August 31, 2005
Before TRAXLER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Petition denied by unpublished per curiam opinion.
John D. Horton, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
John D. Horton petitions for writ of mandamus. He seeks
an order directing the Clerk of the United States District Court
for the Eastern District of North Carolina to file his notice of
appeal in Horton v. Shull, No. 5:04-CV-227-BO.
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 only be used 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 notice of appeal Horton seeks to file has been filed
in the district court. Accordingly, we deny the petition for writ
of mandamus as moot. 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.
PETITION DENIED
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