UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-2126
In Re: LEROY J. KELLY,
Petitioner.
On Petition for Writ of Mandamus. (3:97-cr-00333-RLV-1)
Submitted: April 20, 2011 Decided: May 6, 2011
Before WILKINSON, GREGORY, and KEENAN, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Leroy J. Kelly, Petitioner Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Leroy J. Kelly petitions for a writ of mandamus
seeking an order to compel the district court to issue an order
granting the mandamus petition Kelly filed in the district court
to enjoin the Federal Bureau of Prisons (“BOP”) from withholding
further earnings for the payment of restitution and to reimburse
earnings already withheld. We conclude that Kelly is not
entitled to mandamus relief.
Mandamus relief is a drastic remedy and should be used
only in extraordinary circumstances. Kerr v. U.S. Dist. Court,
426 U.S. 394, 402 (1976); United States v. Moussaoui, 333 F.3d
509, 516-17 (4th Cir. 2003). Further, mandamus relief may be
obtained only when the petitioner has a clear right to the
relief sought and there is no other available remedy. In re
Braxton, 258 F.3d 250, 261 (4th Cir. 2001).
Here, the district court issued an order in January
2011 granting in part and denying in part the relief Kelly
sought in his district court mandamus petition. To the extent
that the mandamus petition filed in this court seeks an order
compelling the district court to act on the mandamus petition
filed there, we deny the mandamus as moot. To the extent that
the district court did not grant the relief Kelly sought in that
court and in the subject mandamus petition, relief is not
available by way of a mandamus petition in this court because
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Kelly had another available remedy; namely, to appeal from the
denial of relief in the district court. 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
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