Stewart v. Angelone ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
LARRY L. STEWART,
Petitioner-Appellant,
v.
No. 95-6919
RONALD J. ANGELONE, Director of
the Virginia Department of
Corrections,
Respondent-Appellee.
LARRY L. STEWART,
Petitioner-Appellant,
v.
No. 95-7236
RONALD J. ANGELONE, Director of
the Virginia Department of
Corrections,
Respondent-Appellee.
Appeals from the United States District Court
for the Eastern District of Virginia, at Norfolk.
J. Calvitt Clarke, Jr., Senior District Judge.
(CA-94-704-2)
Submitted: September 19, 1995
Decided: March 11, 1996
Before WIDENER, HALL, and WILLIAMS, Circuit Judges.
_________________________________________________________________
No. 95-6919 vacated and remanded and No. 95-7236 dismissed by
unpublished per curiam opinion.
COUNSEL
Larry L. Stewart, Appellant Pro Se. Donald Richard Curry, OFFICE
OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Vir-
ginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
In these consolidated appeals, Larry Stewart seeks to appeal the
district court's order denying relief on his 28 U.S.C. § 2254 (1988)
petition, and the district court's order denying him leave to proceed
on appeal in forma pauperis. Our review of the record in appeal num-
ber 95-6919 reveals that Stewart's habeas petition contained both
exhausted and unexhausted claims, including an unexhausted claim of
actual innocence based on an affidavit of the victim of the crime
underlying Stewart's conviction. Because of Stewart's unexhausted
claim of actual innocence, which was based on newly discovered evi-
dence, the district court should have either dismissed Stewart's entire
petition without prejudice, or permitted Stewart to amend his petition
to drop this unexhausted claim. See Rose v. Lundy, 455 U.S. 509, 520,
522 (1982). Accordingly, in appeal number 95-6919 we grant leave
to proceed in forma pauperis and a certificate or probable cause to
appeal, vacate the district court's order, and remand for further pro-
ceedings consistent with these options.
Regarding appeal number 95-7236, we note that Fed. R. App. P.
24(a) does not contemplate appeals from district court orders denying
leave to proceed in forma pauperis on appeal, but rather directs a liti-
gant whose motion is denied by the district court to file a successive
and independent motion for such relief in the court of appeals. See
United States v. Boutwell, 896 F.2d 884, 889 (5th Cir. 1990). Stewart
2
did not file such a motion and were we to construe his appeal as such
a motion, it would be denied. We therefore deny a certificate of prob-
able cause to appeal, deny leave to proceed in forma pauperis, and
dismiss appeal number 95-7236. 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.
No. 95-6919 - VACATED AND REMANDED
No. 95-7236 - DISMISSED
3