In Re: Leonard A. Smith, Petitioner, 989 F.2d 494 (4th Cir. 1993)

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US Court of Appeals for the Fourth Circuit - 989 F.2d 494 (4th Cir. 1993) Submitted: March 1, 1993Decided: March 29, 1993

On Petition for Writ of Mandamus.

Leonard A. Smith, Petitioner Pro Se.

PETITION DENIED.

Before WIDENER, HAMILTON, and WILLIAMS, Circuit Judges.

PER CURIAM:


Leonard A. Smith has filed a petition for a writ of mandamus compelling Chief Judge Falcon B. Hawkins of the District of South Carolina to rule upon the magistrate judge's recommendation that Smith's 28 U.S.C. § 2254 (1988) petition be denied. However, a review of the district court docket sheet reveals this case is in the court of Judge Matthew J. Perry and, to date, no report and recommendation has been submitted by a magistrate judge.

Smith moved in November 1991 for habeas relief, pursuant to § 2254. On January 21, 1992, Respondents filed a motion for summary judgment, to which Smith responded, after numerous requests for extensions of time in which to respond, on May 1, 1992. The habeas petition and Respondents' motion for summary judgment were then referred to Magistrate Judge Joseph R. McCrorey, pursuant to 28 U.S.C.A. § 636(b) (1) (B) (West Supp. 1992), and were still pending when Smith filed the instant mandamus petition on November 10, 1992.

We find that Smith has failed to demonstrate a clear right to have Chief Judge Hawkins, rather than Judge Perry, rule on a non-existent recommendation by a magistrate judge. See In re First Fed. Sav. & Loan Ass'n, 860 F.2d 135, 138 (4th Cir. 1988). We further find that the delay in the district court has not been unreasonable. Therefore, we deny the mandamus petition. However, the denial is without prejudice to Smith's right to refile if the magistrate judge and the district court fail to act on his motion within a reasonable time.

Although we grant Smith's motion to proceed in forma pauperis, we deny his petition for 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