Opinion
23-1264
10-04-2023
In re: ARTHUR BURNHAM, Movant.
(D.C. No. 1:23-CV-01025-LTB-KLM) (D. Colo.)
Before HARTZ, KELLY, and MORITZ, Circuit Judges.
ORDER
This matter is before us on Arthur Burnham's pro se petition for a writ of mandamus. The petition seeks expedited review of the district court's order dismissing his application for a writ of habeas corpus under 28 U.S.C. § 2254, and a writ directing the district court to order that he be released from custody. Mr. Burnham has also filed a notice of appeal from the same district court's order in Case No. 23-1292, but that matter is not before us for a decision.
"[A] writ of mandamus is a drastic remedy, and is to be invoked only in extraordinary circumstances." In re Cooper Tire & Rubber Co., 568 F.3d 1180, 1186 (10th Cir. 2009) (internal quotation marks omitted). "[M]andamus is not a substitute for an appeal," and "we will grant a writ only when the district court has acted wholly without jurisdiction or so clearly abused its discretion as to constitute usurpation of power." Id. (internal quotation marks omitted). To obtain a writ, the petitioner must show both that he has "no other adequate means to attain the relief he desires," and "that his right to the writ is clear and indisputable." Id. at 1187 (internal quotation marks omitted). Even if the petitioner makes the required showing, we may not issue the writ unless we are "satisfied that the writ is appropriate under the circumstances." Id. (internal quotation marks omitted).
Mr. Burnham has not made the required showing. He maintains that "only 15 days remain in [his] confinement," Am. Pet. at 1, but he submitted no evidence supporting that assertion and he has not explained why pursuing relief in the context of his appeal in Case No. 23-1292 is an inadequate remedy. He has also not shown that he has a "clear and indisputable" right to the writ, In re Cooper Tire, 568 F.3d at 1187 (internal quotation marks omitted), because he has not established that the district court's alleged error in dismissing his § 2254 application amounts to a "usurpation of power," id. at 1186 (internal quotation marks omitted).
Accordingly, we deny the petition. We grant Mr. Burnham's motion for leave to proceed without prepayment of costs and fees.