In re David Wilbert SHANTON, Sr., Petitioner, 26 F. App'x 374

PER CURIAM. David Wilbert Shanton, Sr., has filed a petition for a writ of mandamus in this court to compel the district court to expedite its consideration of his petition filed under 28 U.S.C.A. § 2254 (West 1994 & Supp.2001), and to find that the court’s referral of the § 2254 petition to a magistrate judge for a report and recommendation was error. The granting of a writ of mandamus is a drastic remedy to be used in extraordinary circumstances. In re Beard, 811 F.2d 818, 826-27 (4th Cir.1987).

A petitioner must show that he has a clear right to the relief sought, that the respondent has a clear duty to perform the act requested by petitioner, and that there is no other adequate remedy available. In re First Fed. Sav. & Loan Ass’n, 860 F.2d 135, 138 (4th Cir.1988). Shanton has failed to make the requisite showing for such extraordinary relief. Our review of the district court docket sheet discloses that there has been no undue delay in considering Shanton’s § 2254 petition by the district court and magistrate judge.

Although we grant Shanton’s motion to proceed in forma pauperis, we deny his petition for a 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.