UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-6172
In Re: DAVID LEE SMITH,
Petitioner.
On Petition for Writ of Mandamus.
(No. 5:06-hc-02061-BO)
Submitted: April 19, 2007 Decided: April 25, 2007
Before NIEMEYER, KING, and GREGORY, Circuit Judges.
Petition denied by unpublished per curiam opinion.
David Lee Smith, Petitioner Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Lee Smith petitions for a writ of mandamus seeking
an order directing the district court to grant a writ of habeas
corpus and vacate his state convictions for breaking and entering,
larceny, and habitual felon status. We conclude that Smith is not
entitled to mandamus relief.
Mandamus relief is available only when the petitioner has
a clear right to the relief sought. In re First Fed. Sav. & Loan
Ass’n, 860 F.2d 135, 138 (4th Cir. 1988). Further, mandamus is a
drastic remedy and should only be used in extraordinary
circumstances. 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. In re United
Steelworkers, 595 F.2d 958, 960 (4th Cir. 1979). Smith has noted
an appeal of the district court’s order denying his 28 U.S.C.
§ 2254 (2000) petition.
The relief sought by Smith 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. 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
- 2 -