Don Newby v. Harold Clarke ( 2019 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-6262
DON NEWBY,
Petitioner - Appellant,
v.
HAROLD CLARKE, Director of the Virginia Department of Corrections,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. John A. Gibney, Jr., District Judge. (3:18-cv-00714-JAG-RCY)
Submitted: May 16, 2019 Decided: May 21, 2019
Before DIAZ and THACKER, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Dismissed by unpublished per curiam opinion.
Don Cornelius Newby, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Don Newby seeks to appeal the district court’s order dismissing without prejudice
his 28 U.S.C. § 2254 (2012) petition for failure either to pay the filing fee or explain why
he should be excused from paying the fee. The order is not appealable unless a circuit
justice or judge issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(A)
(2012). 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) (2012). 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.
After filing this appeal, Newby paid the district court filing fee, and the district
court subsequently entered an order vacating its dismissal order and reinstating Newby’s
§ 2254 proceeding. Accordingly, we deny Newby’s application to proceed in forma
pauperis, deny a certificate of appealability, and dismiss this appeal as moot. 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.
DISMISSED
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