Long v. Perry , 699 F. App'x 260 ( 2017 )

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Ronnie Wallace Long seeks to appeal the district court’s order accepting the recommendation of the magistrate judge and dismissing without prejudice his 28 U.S.C. § 2254 (2012) petition on the ground 'that the petition contained an unexhausted, but not procedurally defaulted, Brady¹ claim. The order is not appealable unless a circuit justice or judge issues a certificate of ap-pealability. 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, as here, 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 v. McDaniel, 529 U.S. 473, 484-85, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

We conclude that Long has made the requisite showing, and we therefore grant a certificate of appealability. Although the district court determin,ed that Long was attempting to assert a new, unexhausted Brady claim, Long unequivocally disclaimed, both before this court and the district court, any independent claim based upon newly discovered latent fingerprint evidence. Thus, Long did not present the district court with a mixed petition that required dismissal.²

We vacate the district court’s judgment and remand for further proceedings. 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

1 . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

2 . We do not address whether the newly discovered fingerprint evidence may be considered when examining Long’s exhausted Brady claim or whether that evidence so fundamentally alters Long’s exhausted Brady claim that it may not be considered when addressing the merits of Long’s petition. Winston v. Kelly, 592 F.3d 535, 549 (4th Cir. 2010). We leave any such determination to the district court in the first instance.