Opinion
No. 10-2126.
Submitted: April 20, 2011.
Decided: May 6, 2011.
On Petition for Writ of Mandamus. (3:97-cr-00333-RLV-1).
Leroy J. Kelly, Petitioner Pro Se.
Before WILKINSON, GREGORY, and KEENAN, Circuit Judges.
Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
Leroy J. Kelly petitions for a writ of mandamus seeking an order to compel the district court to issue an order granting the mandamus petition Kelly filed in the district court to enjoin the Federal Bureau of Prisons ("BOP") from withholding further earnings for the payment of restitution and to reimburse earnings already withheld. We conclude that Kelly is not entitled to mandamus relief.
Mandamus relief is a drastic remedy and should be used only in extraordinary circumstances. Kerr v. U.S. Dist. Court, 426 U.S. 394, 402, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976); United States v. Moussaoui, 333 F.3d 509, 516-17 (4th Cir. 2003). Further, mandamus relief may be obtained only when the petitioner has a clear right to the relief sought and there is no other available remedy. In re Braxton, 258 F.3d 250, 261 (4th Cir. 2001).
Here, the district court issued an order in January 2011 granting in part and denying in part the relief Kelly sought in his district court mandamus petition. To the extent that the mandamus petition filed in this court seeks an order compelling the district court to act on the mandamus petition filed there, we deny the mandamus as moot. To the extent that the district court did not grant the relief Kelly sought in that court and in the subject mandamus petition, relief is not available by way of a mandamus petition in this court because Kelly had another available remedy; namely, to appeal from the denial of relief in the district court. Accordingly, although we grant 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.