Greg Gaines v. State of South Carolina

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion certificate of appealability (Local Rule 22(a)) [998215043-2] in 09-7903 Originating case number: 0:08-cv-00530-RBH Copies to all parties and the district court/agency. [998428184] [09-7903, 09-8196]

Download PDF
Greg Gaines v. State of South Carolina Doc. 0 Case: 09-7903 Document: 12 Date Filed: 09/20/2010 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-7903 GREG GAINES, Petitioner - Appellant, v. STATE OF SOUTH CAROLINA; WARDEN, TYGER RIVER CORRECTIONAL INSTITUTION, Respondents - Appellees. No. 09-8196 GREG GAINES, Petitioner - Appellant, v. STATE OF SOUTH CAROLINA; WARDEN, TYGER RIVER CORRECTIONAL INSTITUTION, Respondents - Appellees. Appeals from the United States District Court for the District of South Carolina, at Rock Hill. R. Bryan Harwell, District Judge. (0:08-cv-00530-RBH) Submitted: July 28, 2010 Decided: September 20, 2010 Dockets.Justia.com Case: 09-7903 Document: 12 Date Filed: 09/20/2010 Page: 2 Before DUNCAN and AGEE, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Greg Gaines, Appellant Pro Se. Donald John Zelenka, Deputy Assistant Attorney General, Melody Jane Brown, Assistant Attorney General, Columbia, South Carolina, for Appellees. Unpublished opinions are not binding precedent in this circuit. 2 Case: 09-7903 Document: 12 Date Filed: 09/20/2010 Page: 3 PER CURIAM: In appeal No. 09-7903, Greg Gaines seeks to appeal the district court's order adopting the magistrate judge's report and recommendation and denying relief on his 28 U.S.C. 2254 (2006) petition. In appeal No. 09-8196, Gaines seeks to appeal the district court's subsequent order granting reconsideration, but again adopting the magistrate judge's report and recommendation and denying relief. In appeal No. 09-7903, the district court's order was nullified by the court's subsequent order, that granted Gaines' motion judge's for reconsideration and and re-evaluated in the magistrate of Gaines' report recommendation light objections. Thus, this appeal is moot. See Friedman's, Inc. v. Dunlap, 290 F.3d 191, 197 (4th Cir. 2002)("When circumstances change from the time the suit is filed to the time of appeal, so that the appellate court can no longer serve the intended harmpreventing function or has no effective relief to offer, the controversy is no longer live and must be dismissed as moot.")(quoting Cnty. Motors, Inc. v. Gen. Motors Corp., 278 F.3d 40, 43 (1st Cir. 2002)). Accordingly, we deny Gaines' motion for a certificate of appealability in No. 09-7903 and dismiss that appeal. 3 Case: 09-7903 Document: 12 Date Filed: 09/20/2010 Page: 4 In appeal No. 09-8196, the order is not appealable unless a circuit justice See 28 or judge issues a certificate (2006). absent of A "a appealability. certificate of U.S.C. 2253(c)(1) not issue appealability will substantial showing of the denial of a constitutional right." 28 U.S.C. 2253(c)(2) (2006). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating district debatable that reasonable of v. jurists the would find that claims 473, the is 484 court's or assessment Slack constitutional 529 U.S. wrong. McDaniel, (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the petition states a debatable claim of the denial of a constitutional right. at 484-85. that We have independently has not made reviewed the Slack, 529 U.S. the record and conclude Gaines requisite showing. Accordingly, we deny a certificate of appealability in No. 098196 and dismiss that appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials 4 Case: 09-7903 Document: 12 Date Filed: 09/20/2010 Page: 5 before the court and argument would not aid the decisional process. DISMISSED 5

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?