Tony Ricardo Williams v. US

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to proceed in forma pauperis (FRAP 24) [999102420-2] Originating case number: 5:13-hc-02063-BO Copies to all parties and the district court/agency. [999208691]. Mailed to: Tony Ricardo Williams. [13-6644]

Appeal: 13-6644

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-6644

TONY RICARDO WILLIAMS,
Petitioner - Appellant,
v.
UNITED STATES OF AMERICA,
Respondent - Appellee.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Terrence W. Boyle,
District Judge. (5:13-hc-02063-BO)

Submitted:

September 24, 2013

Decided:

October 4, 2013

Before MOTZ, KING, and KEENAN, Circuit Judges.

Dismissed in part; affirmed in part by unpublished per curiam
opinion.

Tony Ricardo Williams, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Tony

Ricardo

Williams

seeks

to

appeal

the

district

court’s initial order denying relief on his 28 U.S.C. § 2254
(2006) petition and the court’s subsequent order reaffirming the
dismissal

of

his

§ 2254

petition

after

Williams

filed

a

corrected § 2254 petition. *

The orders are not appealable unless

a

judge

circuit

justice

appealability.

or

issues

a

certificate

28 U.S.C. § 2253(c)(1)(A) (2006).

of

A certificate

of appealability will not issue absent “a substantial showing of
the denial of a constitutional right.”
(2006).

28 U.S.C. § 2253(c)(2)

When, as here, the district court denies relief on the

merits, a prisoner satisfies this standard by demonstrating that
reasonable

jurists

would

find

that

the

district

court’s

assessment of the constitutional claims is debatable or wrong.
Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v.
Cockrell, 537 U.S. 322, 336-38 (2003).

Although the district

court did not specifically address all of Williams’ claims in
its initial order denying § 2254 relief, we have independently
reviewed the record and conclude that Williams has not made the

*

Although Williams did not file an amended notice of appeal
to include the second order, his informal appellate brief may
serve as the notice of appeal, and we deem it timely filed. See
Smith v. Barry, 502 U.S. 244, 245 (1992) (holding that appellate
brief may serve as notice of appeal provided it otherwise
complies with rules governing proper timing and substance).

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requisite

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showing

for

a

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certificate

of

appealability.

Accordingly, we deny a certificate of appealability in part and
dismiss this portion of the appeal.
Turning to Williams’ appeal of the district court’s
order reaffirming the denial of relief, we note that Williams’
appeal of the district court’s initial order denying relief was
pending in this court at the time the district court entered its
second order.

Because the second order was not in aid of the

pending appeal, the district court was without jurisdiction to
enter it.

See Wolfe v. Clarke, 718 F.3d 277, 281 n.3 (4th Cir.

2013); Dixon v. Edwards, 290 F.3d 699, 709 n.14 (4th Cir. 2002).
Accordingly, we grant a certificate of appealability in part for
the purpose of modifying the district court’s order to reflect
that it was without jurisdiction to consider Williams’ corrected
§ 2254 petition and affirm the order as modified.
We grant Williams leave to proceed in forma pauperis
on appeal and dispense with oral argument because the facts and
legal
before

contentions
this

Court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.
DISMISSED IN PART;
AFFIRMED IN PART

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