Eugene King v. Robert Stevenson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7766
EUGENE KING,
Petitioner - Appellant,
v.
ROBERT M. STEVENSON,
Respondent - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Terry L. Wooten, District Judge.
(0:12-cv-01130-TLW)
Submitted: February 6, 2013 Decided: February 12, 2013
Before WILKINSON, KING, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Eugene King, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Eugene King seeks to appeal the district court’s order
accepting the magistrate judge’s recommendation and dismissing
his 28 U.S.C. § 2254 (2006) petition without prejudice as an
unauthorized second or successive § 2254 petition.
King filed the petition the same month he filed his
first § 2254 petition. As he has explained in his objections to
the magistrate judge’s recommendation and on appeal, he did not
intend to file two § 2254 petitions but rather sought to obtain
a clock-stamped copy of his petition from the district court for
his records. The district court docketed the numerically second
petition in a new action, and the magistrate judge recommended
dismissing the petition as successive even though the first
petition was still pending and had not been adjudicated.
We grant a certificate of appealability on the issue
of whether the district court erred in dismissing the instant
petition as an unauthorized second or successive petition within
the meaning of 28 U.S.C. § 2244(b) (2006), but we affirm the
district court’s dismissal of the petition without prejudice on
the ground that it was improvidently docketed as a new petition.
We deny a certificate of appealability on any other
issues raised by King. Accordingly, we grant in part and deny
in part King’s motion for a certificate of appealability, and we
deny his motion for appointment of counsel. We dispense with
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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.
AFFIRMED
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