Vinton Cummings v. William Stephens, Director , 551 F. App'x 236 ( 2014 )

Case: 13-10682 Document: 00512498399 Page: 1 Date Filed: 01/13/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-10682 January 13, 2014
Lyle W. Cayce
VINTON DERRICK CUMMINGS, Clerk
Petitioner-Appellant
v.
WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:12-CV-473
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Vinton Derrick Cummings, Texas prisoner # 1612718, moves for a
certificate of appealability (COA) to appeal the district court’s denial of his
motion to reinstate his 28 U.S.C. § 2254 petition challenging his murder
conviction. Cummings had previously moved to withdraw this petition, and
the district court construed Cummings’s motion as a motion for voluntary
dismissal and granted it, dismissing the case without prejudice. The district
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 13-10682 Document: 00512498399 Page: 2 Date Filed: 01/13/2014
No. 13-10682
court’s denial of the motion to reinstate is not a “final order in a habeas corpus
proceeding.” 28 U.S.C. § 2253(c)(1)(A); see Long v. Bd. of Pardons and Paroles
of Texas, 725 F.2d 306, 306-07 (5th Cir. 1984). Accordingly, Cummings’s
COA motion is DENIED as unnecessary.
Before this court, Cummings contends that he was entitled to reinstate
his previous § 2254 petition because he withdrew the pleading based on his
need to exhaust a new claim for relief and because the dismissal of the petition
without prejudice should not affect his rights. He has not shown that the
district court abused its discretion in denying his motion. See Aucoin v. K-Mart
Apparel Fashion Corp., 943 F.2d 6, 8-9 (5th Cir. 1991). “A voluntary dismissal
without prejudice leaves the situation as if the action had never been filed.”
Long, 725 F.2d at 307. Thus, the district court was not required to reinstate
the dismissed petition. See id. Consequently, the district court’s order is
AFFIRMED.
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