UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1400
In re: TIMOTHY RAY ELEY,
Petitioner.
On Petition for Writ of Mandamus. (1:13-cv-00399-LMB-TRJ)
Submitted: July 11, 2014 Decided: August 4, 2014
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Timothy Ray Eley, Petitioner Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Timothy Ray Eley petitions for a writ of mandamus
seeking an order to compel his former counsel, an assistant
public defender for the City of Portsmouth, to file an affidavit
on Eley’s behalf. We conclude that Eley 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 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).
To the extent that Eley seeks to compel his counsel to
act in his official capacity, we do not have jurisdiction to
grant mandamus relief against state officials. Gurley v.
Superior Court of Mecklenburg Cnty., 411 F.2d 586, 587 (4th Cir.
1969). To the extent that Eley seeks to compel his counsel to
act in any other capacity, his request is beyond the scope of
mandamus relief. See In re Braxton, 258 F.3d 250, 261 (4th Cir.
2001) (providing that party seeking writ of mandamus must
establish, inter alia, that requested act “is an official act or
duty”).
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The relief sought by Eley 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
this court and argument would not aid the decisional process.
PETITION DENIED
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