In re: Wendall A. JONES, Petitioner, 139 F. App'x 515

PER CURIAM: Wendell A. Jones petitions for writ of mandamus, asking this court to direct the magistrate judge to compel discovery in his 28 U.S.C. § 2254 (2000) action and to defer or set aside any judgment in that action until discovery has occurred. He also seeks an order compelling the magistrate judge to respond to his motion for partial

summary judgment and an extension of time to respond to the respondent’s motion to dismiss. Mandamus is a drastic remedy to be used only in extraordinary circumstances. Kerr v. United States Dist. Court, 426 U.S. 394, 402, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976). Mandamus relief is available only when there are no other means by which the relief sought could be granted, In re Beard, 811 F.2d 818, 826 (4th Cir.1987), and may not be used as a substitute for appeal, In re Catawba Indian Tribe, 973 F.2d 1133, 1136 (4th Cir.1992).

The party seeking mandamus relief bears the heavy burden of showing that he has no other adequate means to obtain the relief sought and that his entitlement to relief is “clear and indisputable.” Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980). Our review of the district court’s docket sheet reveals that, after Jones filed his mandamus petition, the magistrate judge denied Jones’ motion for partial

summary judgment and dismissed his § 2254 petition. Therefore, Jones’ mandamus petition is moot. Moreover, to the extent that Jones seeks to set aside the magistrate judge’s final order, he has another available remedy; namely, an appeal from that order. Accordingly, although we grant leave to proceed in forma pauperis, we deny Jones’ 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. DISMISSED Pursuant to 28 U.S.C. § 636(c) (2000), the parties consented to the jurisdiction of a magistrate judge.