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  • In Re: Westbrook V., 4th Cir. (2007)

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    The United States Court of Appeals for the Fourth Circuit denied Larnette Westbrook's petition for a writ of mandamus. Westbrook objected to a magistrate judge's report recommending denial of his 28 U.S.C. § 2241 habeas petition and alleged erroneous denial of his motion for default judgment. The court concluded Westbrook was not entitled to mandamus relief because he had other means to obtain the requested relief, including appealing the district court's order adopting the magistrate's report and denying the § 2241 petition. Mandamus is a drastic remedy only appropriate in extraordinary circumstances, and may not be used as a substitute for appeal.

    Original Description:

    Filed: 2007-08-01 Precedential Status: Non-Precedential Docket: 07-6786

    Original Title

    In Re: Westbrook v., 4th Cir. (2007)

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    The United States Court of Appeals for the Fourth Circuit denied Larnette Westbrook's petition for a writ of mandamus. Westbrook objected to a magistrate judge's report recommending denial of his 28 U.S.C. § 2241 habeas petition and alleged erroneous denial of his motion for default judgment. The court concluded Westbrook was not entitled to mandamus relief because he had other means to obtain the requested relief, including appealing the district court's order adopting the magistrate's report and denying the § 2241 petition. Mandamus is a drastic remedy only appropriate in extraordinary circumstances, and may not be used as a substitute for appeal.

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    3 views3 pages

    In Re: Westbrook V., 4th Cir. (2007)

    Uploaded by

    Scribd Government Docs
    The United States Court of Appeals for the Fourth Circuit denied Larnette Westbrook's petition for a writ of mandamus. Westbrook objected to a magistrate judge's report recommending denial of his 28 U.S.C. § 2241 habeas petition and alleged erroneous denial of his motion for default judgment. The court concluded Westbrook was not entitled to mandamus relief because he had other means to obtain the requested relief, including appealing the district court's order adopting the magistrate's report and denying the § 2241 petition. Mandamus is a drastic remedy only appropriate in extraordinary circumstances, and may not be used as a substitute for appeal.

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    of 3

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 07-6786

    In Re: LARNETTE M. WESTBROOK,


    Petitioner.

    On Petition for Writ of Mandamus.


    (5:06-cv-00086)

    Submitted:

    July 24, 2007

    Decided:

    August 1, 2007

    Before WILKINSON, TRAXLER, and DUNCAN, Circuit Judges.

    Petition denied by unpublished per curiam opinion.

    Larnette M. Westbrook, Petitioner Pro Se.

    Unpublished opinions are not binding precedent in this circuit.

    PER CURIAM:
    Larnette M. Westbrook has filed a petition for a writ of
    mandamus with this court in which he objects to the magistrate
    judges report and recommendation as to his 28 U.S.C. 2241 (2000)
    petition and alleges that his motion for default judgment was
    erroneously denied.

    We conclude that Westbrook is not entitled to

    mandamus relief.
    Mandamus relief is available only when the petitioner has
    a clear right to the relief sought.

    In re First Fed. Sav. & Loan

    Assn, 860 F.2d 135, 138 (4th Cir. 1988).


    drastic

    remedy

    circumstances.

    and

    should

    only

    be

    Further, mandamus is a
    used

    in

    extraordinary

    Kerr v. United States Dist. Court, 426 U.S. 394,

    402 (1976); In re Beard, 811 F.2d 818, 826 (4th Cir. 1987).
    Mandamus may not be used as a substitute for appeal.

    In re United

    Steelworkers, 595 F.2d 958, 960 (4th Cir. 1979).


    The relief sought by Westbrook is not available by way of
    mandamus because he has other means to obtain the requested relief,
    including an appeal of the district courts July 11, 2007, order
    adopting the magistrate judges report and denying the 2241
    petition.
    We

    Accordingly, we deny the petition for writ of mandamus.

    dispense

    with

    oral

    argument

    because

    - 2 -

    the

    facts

    and

    legal

    contentions are adequately presented in the materials before the


    court and argument would not aid the decisional process.

    PETITION DENIED

    - 3 -

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