In Re Dennis Oliver Fraley, Appellant, 940 F.2d 652 (4th Cir. 1991)

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US Court of Appeals for the Fourth Circuit - 940 F.2d 652 (4th Cir. 1991) Submitted June 19, 1991. Decided July 25, 1991

Appeal from the United States District Court for the Northern District of West Virginia, at Elkins. Robert Earl Maxwell, Chief District Judge. (MISC-90-49-E)

Dennis Oliver Fraley, appellant pro se.

N.D.W. Va.


Before DONALD RUSSELL and SPROUSE, Circuit Judges, and BUTZNER, Senior Circuit Judge.



Dennis O. Fraley, a federal prisoner, brought a petition for writ of mandamus before the district court. He claimed that he had submitted evidence about criminal activities to the United States Attorney for the Northern District of West Virginia, but that the United States Attorney refused to submit the evidence to a grand jury. He sought an order directing the United States Attorney to present Farley's evidence to the grand jury in order to obtain indictments. The district court denied the petition. The court reasoned that Fraley had presented no facts which would warrant issuance of the writ. We affirm.

A victim has no constitutional right to insist on prosecution. Sattler v. Johnson, 857 F.2d 224 (4th Cir. 1988). Further, the United States Attorney's decision to seek an indictment is discretionary. Massey v. Smith, 555 F.2d 1355 (8th Cir. 1977). Courts will not interfere with the United States Attorney's exercise of his discretion in deciding whether to seek an indictment. Inmates of Attica Corr. Fac. v. Rockefeller, 477 F.2d 375, 379-82 (2d Cir. 1973); 28 U.S.C. § 1361 (mandamus applies to ministerial but not discretionary functions of federal officials). Therefore, the petition for writ of mandamus was correctly denied.

We deny Fraley's motion for appointment of counsel. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not significantly aid the decisional process.