United States of America, Plaintiff-appellee, v. Andrew Renfro, Defendant-appellant, 953 F.2d 645 (6th Cir. 1992)

ORDER

Andrew Renfro, a pro se federal prisoner, appeals the district court's order denying his "motion for petition for writ of mandamus." He also requests permission to proceed without prepayment of filing fees on appeal. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

In his motion before the district court, Renfro alleged that the district court judge eliminated the special parole term which he is now serving, by an order filed August 29, 1980. The district court determined that the sentencing judge, now deceased, did amend Renfro's sentence by eliminating the five-year special parole term but only with respect to Renfro's conviction under 21 U.S.C. § 846, without disturbing the special parole terms imposed for his other two convictions under 21 U.S.C. § 841(a) (1).

Upon review, this court concludes that the district court's order denying Renfro's motion should be affirmed for reasons stated by the district court. On appeal, Renfro requests this court to accept his motion as "an emergency appeal for a Habeas Corpus in lieu of the Writ of Mandamus...." It would not be appropriate for this court to accept Renfro's appeal as a petition for a writ of habeas corpus. See 28 U.S.C. §§ 2241(b) and 2255. Moreover, the record shows that Renfro's counsel and the United States Attorney in this matter stipulated that Renfro's petition for a writ of habeas corpus before the district court was to be withdrawn, and an order was entered, accordingly. Therefore, any argument that Renfro has first petitioned the district court for habeas relief is without merit.

Accordingly, Renfro's request to proceed in forma pauperis is granted, and the district court's order is hereby affirmed. Rule 9(b) (3), Rules of the Sixth Circuit.