Source: United States Court of Appeals for the Fourth Circuit
Date: 2002-07-23
Jurisdiction: United States
Docket: No. 02-4446
Citation: 40 F. App'x 871
Opinion
PER CURIAM. Robert W. Petty brought this petition for writ of mandamus requesting this court to order the district court to correct its erroneous re-characterization of his motion as one filed pursuant to Fed.R.Crim.P. 33. Petty has filed motions in the district court requesting such action, but the district court has not yet addressed these motions. Petty has failed to present such an extraordinary situation as to warrant the drastic remedy of mandamus relief. See Kerr v. United States Dist. Court, 426 U.S. 394, 402, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976); In re Beard, 811 F.2d 818, 826 (4th Cir.1987).
Because mandamus relief is not a substitute for an appeal, In re United Steelworkers, 595 F.2d 958, 960 (4th Cir. 1979), Petty has an available remedy, namely to allow the district court to address his motions, and, following entry of a final order, noting an appeal. Accordingly, while we grant Petty’s motion for 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.