UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-7149
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LEON MASON, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, District Judge. (CR-
01-538-JFM; CA-04-3306-JFM)
No. 05-7240
In Re: LEON MASON, JR.,
Petitioner.
On Petition for Writ of Mandamus. (CA-04-3306)
Submitted: November 18, 2005 Decided: January 3, 2006
Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
No. 05-7149 dismissed; No. 05-7240 petition denied by unpublished
per curiam opinion.
Leon Mason, Jr., Appellant Pro Se. Jane Meadowcroft Erisman,
Assistant United States Attorney, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
These consolidated cases are before the court for
disposition. In No. 05-7149, Leon Mason, Jr., seeks to appeal the
district court’s order denying relief on his motion filed under
Fed. R. Civ. P. 60(b).* To appeal an order denying a Rule 60(b)
motion in a postconviction proceeding, Mason must establish his
entitlement to a certificate of appealability. Reid v. Angelone,
369 F.3d 363, 369 (4th Cir. 2004). 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 the district court’s assessment of his
constitutional claims is 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 (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 Mason has not made the requisite showing.
Because Mason’s motion did not assert a defect in the
collateral review process itself, but rather reargued the merits of
his application for relief under § 2255, the motion is properly
*
The notice of appeal was not timely as to the district
court’s denial of relief on Mason’s underlying motion under 28
U.S.C. § 2255.
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characterized as a successive § 2255 motion under our decision in
United States v. Winestock, 340 F.3d 200, 207 (4th Cir. 2003). To
the extent that Mason’s notice of appeal and informal brief can be
construed as a motion for authorization to file a successive § 2255
motion, we deny such authorization. See Winestock, 340 F.3d at
208. Accordingly, we deny a certificate of appealability and
dismiss the appeal in No. 05-7149.
In No. 05-7240, Mason petitions this court for writ of
mandamus, complaining that the district court did not enter a
default judgment against the Government in his § 2255 proceeding,
and did not file a notice of appeal that Mason claims to have filed
in May 2005. The writ of mandamus is a drastic remedy to be used
only in extraordinary circumstances. In re Beard, 811 F.2d 818,
826 (4th Cir. 1987) (citing Kerr v. United States Dist. Court, 426
U.S. 394, 402 (1976)). It is available only when there are no
other means by which the relief sought could be granted, id., and
it may not be used as a substitute for appeal. In re Catawba
Indian Tribe, 973 F.2d 1133, 1135-36 (4th Cir. 1992). The party
seeking mandamus relief thus carries the heavy burden of showing he
has no other adequate means to attain the relief he desires and
that his entitlement to such relief is clear and indisputable.
Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980). In
this case, the default issue is one that Mason could have raised on
appeal in No. 05-7149, but he did not. As to the notice of appeal,
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the district court clerk’s office has no record that such a notice
was filed and Mason cannot prove that he did, in fact, file it.
The exhibits he submitted with his mandamus petition did not
establish that a timely notice was filed. Therefore, Mason has not
shown a clear and indisputable right to mandamus relief.
Therefore, although we grant Mason leave to proceed in forma
pauperis, we deny the 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.
No. 05-7149 DISMISSED
No. 05-7240 PETITION DENIED
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