Farabee v. Superintendent, Meherrin River Regional Jail , 685 F. App'x 268 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-7461
BRIAN DAMON FARABEE,
Petitioner - Appellant,
v.
SUPERINTENDENT, Meherrin River Regional Jail; Va. Dep’t of Corr.;
COMMISSIONER OF THE DBHDS,
Respondents - Appellees.
Appeal from the United States District Court for the Eastern District of Virginia, at
Norfolk. Mark S. Davis, District Judge. (2:15-cv-00256-MSD-LRL)
Submitted: March 31, 2017 Decided: April 21, 2017
Before GREGORY, Chief Judge, and SHEDD and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Brian Damon Farabee, Appellant Pro Se. Steven Andrew Witmer, Senior Assistant
Attorney General, Eugene Paul Murphy, Sean Joseph Murphy, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Brian Damon Farabee seeks to appeal the district court’s orders purportedly
accepting the recommendation of the magistrate judge and dismissing his 28 U.S.C.
§ 2254 (2012) petition, and denying reconsideration. The orders are not appealable
unless a circuit justice or judge issues a certificate of appealability. See 28 U.S.C.
§ 2253(c)(1)(A) (2012); Buck v. Davis, 137 S. Ct. 759, 773 (2017). 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 showing 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
show both that the dispositive procedural ruling is debatable, and the petition states a
debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85.
The magistrate judge found that Farabee’s § 2254 petition was a mixed petition of
both exhausted and unexhausted claims. Applying Rose v. Lundy, 455 U.S. 509 (1982),
the magistrate judge recommended dismissing the petition without prejudice to allow him
to refile it after exhausting his claims in state court. See also Rhines v. Weber, 544 U.S.
269, 277-79 (2005). In its final order, the district court adopted the magistrate judge’s
findings and recommendations but dismissed the petition with prejudice and denied
reconsideration. On appeal, Farabee argues the district court erred in dismissing his
petition with prejudice. We agree. We therefore grant a certificate of appealability on
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this issue, vacate the district court’s orders, and remand for reconsideration. 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.
VACATED AND REMANDED
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