Alfonzo Meeks, Petitioner-appellant, v. J.v. Turlington; Mike Easley, Respondents-appellees, 53 F.3d 328 (4th Cir. 1995)

Alfonzo Meeks noted an appeal from a district court order that dismissed his 28 U.S.C. § 2254 (1988) petition. We decline to issue a certificate of probable cause to appeal the district court's August 1, 1994, order and dismiss.

Meeks filed a habeas corpus petition alleging pre-trial constitutional violations (Petition # 1). Meeks also requested in forma pauperis status. The district court ordered Meeks to pay a five dollar filing fee or respond with an explanation why he could not do so. Meeks failed to pay or respond, and the district court dismissed the action. Meeks then filed a document labelled "Petition for Writ of Habeas Corpus Federal Action Notice of Appeal" which the district court construed as both a motion to reconsider the dismissal order and a notice of appeal (Petition # 2). Meeks claimed in that document that he never received the fee order. The district court found that Meeks was not properly served with the fee order and that his failure to respond was excusable. The court withdrew its dismissal order and ordered Meeks to comply with the fee order. The court then stated, "In light of the foregoing, Plaintiff's petition for a writ of habeus [sic] corpus is DENIED."

The district court's order is ambiguous. It is not clear whether the court dismissed Petition # 1 or Petition # 2. The district court has taken no further action on the petition, and Meeks is understandably confused about whether he should continue in this court or in the district court.

We find that the district court's most recent order withdrew its dismissal of Meeks' Sec. 2254 petition and gave him additional time to respond to its fee order. We also conclude from the text of the district court's order that it denied Meeks' ambiguously labeled habeas corpus petition (Petition # 2), not his original Sec. 2254 petition (Petition # 1). We note that the district court stated in its order, "Pending before the court is plaintiff's petition for a writ of habeus [sic] corpus to appeal this court's order of 12 July 1994." (Emphasis added.) After the district court withdrew its July 12 dismissal, it concluded in the order, "In light of the foregoing, plaintiff's petition for a writ of habeus [sic] corpus is DENIED." Thus, the context of the district court's order suggests that it was in fact denying Meeks' second motion, not his original Sec. 2254 petition.

We therefore deny a certificate of probable cause to appeal the denial of Petition # 2. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

DISMISSED