                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-1128


In Re:   THEODORE THOMAS WAGNER,

                Petitioner.




     On Petition for Writ of Mandamus.      (3:08-cv-03235-GRA)


Submitted:   June 18, 2009                   Decided:   June 23, 2009


Before NIEMEYER, GREGORY, and DUNCAN, Circuit Judges.


Petition denied by unpublished per curiam opinion.


Theodore Thomas Wagner, Petitioner Pro Se.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Theodore      Thomas       Wagner       petitions       for     a   writ     of

mandamus    seeking      an    order    requiring          the    district      court   to

determine     the      constitutionality            of     the    Antiterrorism         and

Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110

Stat. 1241, prior to enforcing it.                   We conclude that Wagner 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   Ass’n,    860    F.2d     135,   138     (4th       Cir.    1988).        Further,

mandamus    is   a     drastic    remedy       and       should    only   be     used   in

extraordinary circumstances.            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 Wagner is not available by way of

mandamus.       Accordingly, although we grant leave to proceed in

forma pauperis, we deny the petition for writ of mandamus.                               We

deny Wagner’s conspiracy motion.               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
