UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1128
In Re: THEODORE THOMAS WAGNER,
Petitioner.
On Petition for Writ of Mandamus. (3:08-cv-03235-GRA)
Submitted: June 18, 2009 Decided: June 23, 2009
Before NIEMEYER, GREGORY, and DUNCAN, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Theodore Thomas Wagner, Petitioner Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Theodore Thomas Wagner petitions for a writ of
mandamus seeking an order requiring the district court to
determine the constitutionality of the Antiterrorism and
Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110
Stat. 1241, prior to enforcing it. We conclude that Wagner 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).
The relief sought by Wagner 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
deny Wagner’s conspiracy motion. 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