                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 09-1090


In Re:    DAVID LEE SMITH,

                 Petitioner.




         On Petition for Writ of Mandamus. (5:08-hc-02184-H)


Submitted:    April 23, 2009                  Decided:   May 5, 2009


Before MICHAEL, GREGORY, and DUNCAN, 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Petition denied by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 to direct the district court to review the

denial of his 28 U.S.C.A. § 2255 (West Supp. 2008) motion.                                We

conclude that Smith 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 substitute for appeal.

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

The relief sought by Smith 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

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




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