In Re: Manuel Sosa, Petitioner, 74 F.3d 1233 (4th Cir. 1996)

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U.S. Court of Appeals for the Fourth Circuit - 74 F.3d 1233 (4th Cir. 1996)

Submitted Dec. 14, 1995. Decided Jan. 18, 1996

Manuel Sosa, Petitioner Pro Se.

Before ERVIN, Chief Judge, and WIDENER and WILKINS, Circuit Judges.


Manuel Sosa petitions this court for a writ of mandamus directing the district court to address his 28 U.S.C. § 2255 (1988) motion. We deny in forma pauperis status and dismiss the petition.

In denying Sosa's first mandamus petition, we gave him leave to file a second mandamus petition if the district court inordinately delayed further action on his Sec. 2255 motion. Sosa now alleges such delay has occurred. A review of the district court's docket report reveals, however, that the district court did act further on the motion, adopting a magistrate judge's recommendation that the motion be dismissed. Further, Sosa participated in the proceedings by filing objections to the magistrate judge's report and recommendation. Sosa's petition is moot to the extent that it is an attempt to force action on the Sec. 2255 motion, and the petition may not substitute for appeal, In re United Steelworkers, 595 F.2d 958, 960 (4th Cir. 1979).

We deny Sosa in forma pauperis status and dismiss his petition. 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.