In Re: Clyde Whitley, No. 14-1276 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-1276 In Re: CLYDE KIRBY WHITLEY, Petitioner. On Petition for Writ of Mandamus. Submitted: June 26, 2014 Decided: July 1, 2014 Before WILKINSON, KING, and GREGORY, Circuit Judges. Petition denied by unpublished per curiam opinion. Clyde Kirby Whitley, Petitioner Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Clyde Kirby Whitley petitions for a writ of mandamus seeking an order clarifying that his North Carolina breaking or entering convictions do not qualify as predicate felonies for purposes of the Armed Career Criminal Act. In the alternative, Whitley requests that this court vacate those convictions. We conclude that Whitley is not entitled to mandamus relief. * Mandamus relief is a drastic remedy and should be used only in Dist. extraordinary Court, Moussaoui, mandamus 426 333 U.S. F.3d relief circumstances. is 394, 509, 402 516-17 available (1976); (4th only clear right to the relief sought. Kerr Cir. when the v. United United States States 2003). v. Further, petitioner has a In re First Fed. Sav. & Loan Ass n, 860 F.2d 135, 138 (4th Cir. 1988). Whitley sought, as we does have not have consistently a clear held right that a to the North relief Carolina conviction for breaking or entering is categorically a violent felony, United States v. Thompson, 588 F.3d 197, 202 (4th Cir. 2009); United States v. Thompson, 421 F.3d 278, 284 (4th Cir. 2005); United States v. Bowden, 975 F.2d 1080, 1084-85 (4th Cir. * We also under the All his motions to clarification, conclude that Whitley is not entitled to relief Writs Act, 28 U.S.C. § 1651(a) (2012), and deny enforce judgment, to enforce plea agreement, for and for appointment of counsel. 2 1992), and Descamps v. United States, 133 S. Ct. 2276 (2013), does not alter that conclusion. United States v. Mungro, ___ F.3d ___, ___, No. 13-4503, 2014 WL 2600075, at *4 (4th Cir. June 11, 2014). We also deny Whitley s request to vacate his breaking or entering convictions, as this court does not have jurisdiction to grant mandamus relief against state officials, Gurley v. Superior Court of Mecklenburg Cnty., 411 F.2d 586, 587 (4th Cir. 1969), and does not have jurisdiction to review final state court orders, Dist. of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983). The relief sought by Whitley is not available by way of mandamus. Accordingly, although we grant leave to proceed in forma pauperis, we deny the petition for writ of mandamus. dispense with contentions are oral argument adequately because presented in the the facts We and legal materials before this court and argument would not aid the decisional process. PETITION DENIED 3

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