In Re Jerry D. Hamilton, Petitioner, 933 F.2d 1001 (4th Cir. 1991)

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US Court of Appeals for the Fourth Circuit - 933 F.2d 1001 (4th Cir. 1991) Submitted May 6, 1991. Decided May 23, 1991

On Petition for Writ of Mandamus

Jerry D. Hamilton, petitioner pro se.

PETITION DENIED.

Before DONALD RUSSELL, WILKINSON and WILKINS, Circuit Judges.

PER CURIAM:


Jerry D. Hamilton has petitioned this Court for a writ of mandamus directing the district court to set a date for a hearing on his habeas petition in accordance with 28 U.S.C. § 2243. He claims the court is "dragging its feet" because his case is "political." Our review of the district court's docket sheet shows that this case has been handled expeditiously: respondents have filed a motion for summary judgment, to which Hamilton has responded, and the magistrate judge has filed a report and recommendation that the summary judgment motion be granted. Objections were due May 7, 1991.

An evidentiary hearing is not required when the issues are purely legal, see, e.g., Bradley v. Cowan, 500 F.2d 380, 381 (6th Cir. 1974), when facts are undisputed, see, e.g., Foster v. Barbour, 613 F.2d 59, 60-61 (4th Cir. 1980), or when the petitioner would not be entitled to relief if his version of the facts were believed. See Procunier v. Atchley, 400 U.S. 446 (1971). The magistrate judge has recommended that the case be dismissed without an evidentiary hearing. Because Hamilton may voice his grounds for an evidentiary hearing in his objections to the magistrate judge's report and recommendation, mandamus relief is inappropriate. See In re Beard, 811 F.2d 818, 826 (4th Cir. 1987) (mandamus relief is available only if other remedies are ineffective to vindicate petitioner's rights). Therefore, although we grant leave to proceed in forma pauperis, we deny the petition for a 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.