Baruchyah Hawkins v. Harold Clarke
UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to proceed in forma pauperis (FRAP 24) [999698824-2] Originating case number: 7:15-cv-00382-JLK-RSB Copies to all parties and the district court/agency. . Mailed to: B. Hawkins. [15-7568]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BARUCHYAH BEDEYAH HAWKINS, a/k/a Daughton W. Lacey, Jr.,
Petitioner - Appellant,
HAROLD CLARKE, Director, V.D.O.C.,
Respondent - Appellee.
Appeal from the United States District Court for the Western District of Virginia, at
Roanoke. Jackson L. Kiser, Senior District Judge. (7:15-cv-00382-JLK-RSB)
Submitted: April 28, 2017
Before SHEDD, DUNCAN, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Baruchyah Bedeyah Hawkins, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
Decided: May 23, 2017
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Baruchyah Bedeyah Hawkins seeks to appeal the district court’s order dismissing
his 28 U.S.C. § 2254 (2012) petition without prejudice as to his right to file an action under
42 U.S.C. § 1983 (2012). We remanded this case for the limited purpose of allowing the
district court to determine when Hawkins delivered his notice of appeal and objections to
the dismissal order to prison officials for mailing to the court. The district court determined
that Hawkins filed the objections within 28 days of the dismissal order, construed the
objections as a Fed. R. Civ. P. 59(e) motion, and denied relief of the objections. Because
filing a Rule 59 motion tolls the appeal period until disposition of the motion, see Fed. R.
App. P. 4(a)(4)(A)(iv), Hawkins’ notice of appeal—filed after entry of the dismissal order
but before disposition of the Rule 59 motion—became effective on the date the court
denied the Rule 59 motion, see Fed. R. App. P. 4(a)(B)(i). Consequently, Hawkins’ appeal
Because the district court dismissed Hawkins’ action without prejudice, we must
consider whether we have jurisdiction to decide Hawkins’ appeal. See Porter v. Zook, 803
F.3d 694, 696 (4th Cir. 2015). “And that jurisdiction generally is limited to appeals from
final decisions of the district courts, 28 U.S.C. § 1291—decisions that end the litigation
on the merits and leave nothing for the court to do but execute the judgment.” 1 Id.
(internal quotation marks omitted). “An order dismissing a complaint without prejudice is
The district court’s order is not an immediately appealable interlocutory or
collateral order. See 28 U.S.C. § 1292 (2012); Fed. R. Civ. P. 54(b); Cohen v. Beneficial
Indus. Loan Corp., 337 U.S. 541, 545-47 (1949).
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not an appealable final order under § 1291 if the plaintiff could save his action by merely
amending his complaint.” Goode v. Cent. Va. Legal Aid Soc’y, Inc., 807 F.3d 619, 623
(4th Cir. 2015) (internal quotation marks omitted). We conclude that the ground on which
the district court relied to dismiss the action cannot be cured by simply amending the
petition. See id. at 624; see also Nettles v. Grounds, 830 F.3d 922, 935, 936 (9th Cir. 2016)
(noting procedural and substantive differences between § 2254 and § 1983 actions,
including the amount of filing fees, the means of collecting those fees, and the defendant
to be named), cert. denied, 137 S. Ct. 645 (2017).
Finally, we have reviewed the record on appeal and find no reversible error in the
district court’s dismissal of Hawkins’ petition. Accordingly, we grant leave to proceed in
forma pauperis and affirm for the reasons stated by the district court. 2 Hawkins v. Clarke,
No. 7:15-cv-00382-JLK-RSB (W.D. Va., Aug. 25, 2015). We deny as moot the pending
certificate of appealability. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before this court and argument would
not aid the decisional process.
Our decision in In re Wright, 826 F.3d 774 (4th Cir. 2016), is distinguishable. The
prisoner in Wright challenged, among other things, the execution of his sentence based on
his claim that the state erroneously applied a statutory sentencing scheme, which adversely
affected the calculation of his good-time and gain-time credits and which could, if
successful, result in his speedier release from prison. Id. at 777; see id. at 779 (holding that
such claims required prisoner to obtain prefiling authorization to file second or successive
habeas petition). Unlike the prisoner in Wright, Hawkins made no claim in his § 2254
petition that, if successful, would result in his speedier release from incarceration.
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