Filed: Jun. 02, 2020
Latest Update: Jun. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 20-1375 In re: DAVID LEE SMITH, Petitioner. On Petition for Writ of Mandamus. (5:06-hc-02061-BO) Submitted: May 18, 2020 Decided: June 2, 2020 Before MOTZ, KEENAN, and HARRIS, Circuit Judges. Petition denied by unpublished per curiam opinion. David Lee Smith, Petitioner Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: David Lee Smith petitions for a writ of mandamus, seeking an order from th
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 20-1375 In re: DAVID LEE SMITH, Petitioner. On Petition for Writ of Mandamus. (5:06-hc-02061-BO) Submitted: May 18, 2020 Decided: June 2, 2020 Before MOTZ, KEENAN, and HARRIS, Circuit Judges. Petition denied by unpublished per curiam opinion. David Lee Smith, Petitioner Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: David Lee Smith petitions for a writ of mandamus, seeking an order from thi..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-1375
In re: DAVID LEE SMITH,
Petitioner.
On Petition for Writ of Mandamus. (5:06-hc-02061-BO)
Submitted: May 18, 2020 Decided: June 2, 2020
Before MOTZ, KEENAN, and HARRIS, Circuit Judges.
Petition denied by unpublished per curiam opinion.
David Lee Smith, Petitioner Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Lee Smith petitions for a writ of mandamus, seeking an order from this court
directing the district court to construe his motion to vacate filed in the action below as a
“U.S. Supreme Court Rule 36(3)(A)(4) motion for his emergency release pending U.S.
Supreme Court review on his written promise to appear” and order a state court judge to
docket and calendar a bond hearing, order that Smith appear at that hearing, and order that
he be released during the state of emergency resulting from the spread of COVID-19.
Smith also has filed a motion to remand case, in which he requests that this court allow
him to amend his mandamus petition and construe that petition as “a motion to remand
case, with instructions for [the] district court to cause [a state] clemency administrator
assistant . . . to issue an emergency clemency order in his case” and commute his
consecutive state prison sentences to a sentence of time served and order his prison
custodian to release him. We construe Smith’s motion to remand case as a motion to amend
his mandamus petition and conclude that Smith is not entitled to mandamus relief.
Mandamus relief is a drastic remedy and should be used only in extraordinary
circumstances. Cheney v. U.S. Dist. Court,
542 U.S. 367, 380 (2004); In re
Murphy--Brown, LLC,
907 F.3d 788, 795 (4th Cir. 2018). Further, mandamus relief is
available only when the petitioner has a clear right to the relief sought.
Murphy-Brown,
907 F.3d at 795. Mandamus may not be used as a substitute for appeal. In re Lockheed
Martin Corp.,
503 F.3d 351, 353 (4th Cir. 2007). This court does not have jurisdiction to
grant mandamus relief against state officials, Gurley v. Superior Court of Mecklenburg
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Cty.,
411 F.2d 586, 587 (4th Cir. 1969), and does not have jurisdiction to review final state
court orders, D.C. Court of Appeals v. Feldman,
460 U.S. 462, 482 (1983).
The relief sought by Smith is not available by way of mandamus. Accordingly,
although we grant leave to proceed in forma pauperis and grant Smith’s motion to amend
his mandamus petition, we deny the mandamus petition as amended. We also deny Smith’s
motion for release due to the COVID-19 threat. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materials before this court
and argument would not aid the decisional process.
PETITION DENIED
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