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  • In Re: Smith V., 4th Cir. (2005)

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    The United States Court of Appeals for the Fourth Circuit denied Bernard Smith's petition for a writ of mandamus. Smith sought an order directing the district court to apply D.C. law instead of sentencing guidelines to his request for parole. The court determined that mandamus relief is only available if there is a clear right to the requested relief. It is an extraordinary remedy that cannot be used as a substitute for appeal. As Smith was not entitled to mandamus, the court denied his petition.

    Original Description:

    Filed: 2005-12-06 Precedential Status: Non-Precedential Docket: 05-7155

    Original Title

    In Re: Smith v., 4th Cir. (2005)

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    The United States Court of Appeals for the Fourth Circuit denied Bernard Smith's petition for a writ of mandamus. Smith sought an order directing the district court to apply D.C. law instead of sentencing guidelines to his request for parole. The court determined that mandamus relief is only available if there is a clear right to the requested relief. It is an extraordinary remedy that cannot be used as a substitute for appeal. As Smith was not entitled to mandamus, the court denied his petition.

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    Public Domain
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    1 views2 pages

    In Re: Smith V., 4th Cir. (2005)

    Uploaded by

    Scribd Government Docs
    The United States Court of Appeals for the Fourth Circuit denied Bernard Smith's petition for a writ of mandamus. Smith sought an order directing the district court to apply D.C. law instead of sentencing guidelines to his request for parole. The court determined that mandamus relief is only available if there is a clear right to the requested relief. It is an extraordinary remedy that cannot be used as a substitute for appeal. As Smith was not entitled to mandamus, the court denied his petition.

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    of 2

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 05-7155

    In Re:

    BERNARD SMITH,

    Petitioner.

    On Petition for Writ of Mandamus.


    (CA-05-120-7)

    Submitted:

    November 22, 2005

    Decided:

    December 6, 2005

    Before MOTZ, TRAXLER, and GREGORY, Circuit Judges.

    Petition denied by unpublished per curiam opinion.

    Bernard Smith, Petitioner Pro Se.

    Unpublished opinions are not binding precedent in this circuit.


    See Local Rule 36(c).

    PER CURIAM:
    Bernard Smith petitions for writ of mandamus.

    He seeks

    an order remanding his case to the district court with directions


    to

    apply

    District

    of

    Columbia

    law

    instead

    of

    the

    sentencing

    guidelines to his request for parole.


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

    See In re First Fed. Sav. &

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

    Further, mandamus

    is a drastic remedy and should only be used in extraordinary


    circumstances.

    See 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.

    See In re

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


    With these criteria in mind, we conclude Smith is not
    entitled to mandamus relief. Accordingly, we deny his petition for
    writ of mandamus.

    We grant Smith leave to proceed in forma

    pauperis and deny his motion for appointment of counsel.

    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

    - 2 -

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