                               UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                               No. 04-7788



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

             versus


MICHAEL ALLEN KOKOSKI,

                                               Defendant - Appellant.


Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley.  David A. Faber, Chief
District Judge. (CR-92-90)


                               No. 04-7837



In Re:   MICHAEL ALLEN KOKOSKI,

                                                           Petitioner.



             On Petition for Writ of Mandamus. (CR-92-90)


Submitted:    February 24, 2005              Decided:   March 23, 2005


Before NIEMEYER, WILLIAMS, and KING, Circuit Judges.


No. 04-7788 dismissed; No. 04-7837 petition denied by unpublished
per curiam opinion.
Michael Allen Kokoski, Appellant/Petitioner Pro Se. Michael Lee
Keller, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




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PER CURIAM:

            In these two consolidated cases, Michael Allen Kokoski

petitions this court for a writ of mandamus, and seeks an order

declaring the district court’s criminal judgment void ab initio

because of fraud on the court.

            In case No. 04-7837, Kokoski seeks an order directing the

district court to rule on his outstanding motions and provide him

with   a   transcript      of    a    pretrial      hearing    at    the    Government’s

expense. Mandamus relief is available only when the petitioner has

a clear right to the relief sought.                  See In re First Fed. Sav. &

Loan Assn., 860 F.2d 135, 138 (4th Cir. 1988).                       Further, mandamus

is a drastic remedy and should be used only in extraordinary

circumstances.      See 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.                            See In re

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

sought     by    Kokoski    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.

            In    appeal        No.    04-7788,      Kokoski        asserts     that   the

Government committed fraud on the court by excluding the true

object of their search from search warrant applications, and thus

seeks an order declaring the district court’s criminal judgment

void ab initio.         However, such a claim must be filed in the


                                            - 3 -
district court, and is thus not properly before this court.     Fed.

R. Civ. P. 60(b)(3).   Accordingly, we dismiss this appeal.   We also

deny all other outstanding motions. 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.



                                              No. 04-7788 DISMISSED

                                        No. 04-7837 PETITION DENIED




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