                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                           No. 05-1596




In Re:   JOHN D. HORTON,



                                                            Petitioner.




                 On Petition for Writ of Mandamus.
                           (CA-04-227-BO)


Submitted:   August 25, 2005                 Decided:   August 31, 2005


Before TRAXLER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Petition denied by unpublished per curiam opinion.


John D. Horton, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.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

              John D. Horton petitions for writ of mandamus.            He seeks

an order directing the Clerk of the United States District Court

for the Eastern District of North Carolina to file his notice of

appeal in Horton v. Shull, No. 5:04-CV-227-BO.

              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 only be used 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 notice of appeal Horton seeks to file has been filed

in the district court.        Accordingly, we deny the petition for writ

of mandamus as moot.         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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