Robert Eakes v. Warden McCall, No. 12-7761 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-7761 ROBERT SAMUEL EAKES, Petitioner - Appellant, v. WARDEN MCCALL, Respondent - Appellee. Appeal from the United States District Court for the District of South Carolina, at Aiken. J. Michelle Childs, District Judge. (1:11-cv-00571-JMC) Submitted: July 9, 2013 Decided: July 18, 2013 Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. John J. Korzen, WAKE FOREST UNIVERSITY, Winston-Salem, North Carolina, for Appellant. Melody Jane Brown, Assistant Attorney General, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: On October 10, 2012, Robert Samuel Eakes appealed the district court s orders denying relief on his 28 U.S.C. § 2254 (2006) petition and denying his Fed. R. Civ. P. 59(e) motion. On June 11, 2013, we granted Eakes leave to proceed in forma pauperis, granted a certificate of appealability on one of the issues raised in his informal brief, and appointed counsel on Eakes behalf. contact Eakes, causes on When he Eakes appointed discovered November 21, that 2012, counsel Eakes shortly had after attempted died of Eakes to natural noted his appeal but before we granted a certificate of appealability. Eakes counsel promptly filed a suggestion of death, see Fed. R. App. P. 43(a)(1), and we directed the parties to provide their views on how this case should proceed. Because Eakes had passed away at the time we entered the June 11 order, we vacate that order, deny Eakes leave to proceed in forma pauperis, deny a certificate of appealability, and dismiss the appeal as moot. 915, 915 (1969) (concluding See Hailey v. Russell, 394 U.S. that habeas petition rendered moot[] by reason of [the] death of petitioner ); McMillin v. Bowersox, 102 F.3d 987, 987 (8th Cir. 1996) ( Since [petitioner s] imprisonment ended upon his death, and there can be no future imprisonment, his collateral collateral consequences attack 2 is flowing moot. ). from his Moreover, having now denied a certificate of appealability, we decline Eakes counsel s invitation to vacate the district court s order and remand with instructions to dismiss Eakes § 2254 petition as moot, as we are without jurisdiction to do so. El v. Cockrell, issuance of 537 U.S. certificate 322, of 335-36 (2003) appealability See Miller- (holding is that jurisdictional prerequisite to appellate court s review of denial of habeas relief); Krantz v. United States, 224 F.3d 125, 127 (2d Cir. 2000) (declining to vacate district court s habeas ruling and remand with instructions to dismiss as moot because court of appeals did not have appellate jurisdiction at the time of petitioner s death [as] a certificate of appealability had not yet issued ). We 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 3
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