In Re Luther Bartrug, Petitioner, 946 F.2d 884 (4th Cir. 1991)

Luther Bartrug filed a petition in this Court in September 1991 challenging his then-impending trial on tax evasion charges, 26 U.S.C. § 7201 (1988). He also alleged that the district court unduly delayed acting on his pretrial habeas petition, which had been pending for twenty-one days when this petition was filed. Bartrug has since been convicted of three counts of income tax evasion; he has not yet been sentenced.

To the extent that Bartrug seeks mandamus relief in this Court, we deny the petition. Mandamus relief is available only when there are no other means by which the requested relief may be granted. In re Beard, 811 F.2d 818, 826-27 (4th Cir. 1987). Bartrug may raise his claim regarding the constitutionality of the statute on direct appeal of his conviction.^*  Therefore, mandamus relief is not appropriate. Further, as his pretrial habeas petition was pending in the district court for only a short time before this petition was filed, there has not been undue delay in the district court.

Bartrug also seeks habeas relief directly from this Court. Although this Court has concurrent jurisdiction with the district court over habeas petitions, 28 U.S.C. § 2241(a) (1988), we decline to exercise our jurisdiction. 28 U.S.C. § 2241(b). Further, as Bartrug filed an identical petition in the district court, transfer to the district court would be futile. However, as noted above, Bartrug may raise his claim in a direct appeal of his conviction. Therefore, we deny the petition for habeas relief.

We grant leave to proceed in forma pauperis. 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.

PETITION DENIED.