Gaines v. State of South Carolina
Appeal Court of Appeals for the Fourth Circuit, Case No. 09-7903

Tags No tags have been applied so far. Sign in to add some.
Request Update Request UpdateSpaceE-Mail Alert Get E-Mail Alerts

  Text Tab Overlap Citations (156) Tab Overlap Cited By (2) Right End
UNPUBLISHED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 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 Dismissed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.

[End Page 2] 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 for reconsideration and re-evaluated the magistrate judge's report and recommendation in light of Gaines' 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 harm- preventing 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. [End Page 3]
In appeal No. 09-8196, the order is not appealable
unless a circuit justice or judge issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1) (2006). A certificate of appealability will not issue absent "a 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 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). 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. Slack, 529 U.S. at 484-85. We have independently reviewed the record and conclude that Gaines has not made the requisite showing. Accordingly, we deny a certificate of appealability in No. 09- 8196 and dismiss that appeal.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials

[End Page 4] before the court and argument would not aid the decisional process.
DISMISSED

[End Page 5]

Statistics

This case has been viewed 169 times.

No comments have been added yet. Sign in to post a comment.
Space
Issues Laws Cases Pro Articles Firms Entities
Issues Laws Cases Pro Articles Firms Entities
 
PlainSite
Sign Up
Need Password Help?