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UNPUBLISHED PER CURIAM OPINION filed.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]

Greg Gaines v. State of South Carolina

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-7903 GREG GAINES, Petitioner - Appellant, v. STATE OF SOUTH CAROLINA; WARDEN, TYGER RIVER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

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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 Dismissed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.

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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.

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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

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before

the

court

and

argument

would

not

aid

the

decisional

process. DISMISSED

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