UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7903
GREG GAINES,
Petitioner - Appellant,
v.
STATE OF SOUTH CAROLINA; WARDEN, TYGER RIVER CORRECTIONAL
INSTITUTION,
Respondents - Appellees.
No. 09-8196
GREG GAINES,
Petitioner - Appellant,
v.
STATE OF SOUTH CAROLINA; WARDEN, TYGER RIVER CORRECTIONAL
INSTITUTION,
Respondents - Appellees.
Appeals from the United States District Court for the District
of South Carolina, at Rock Hill. R. Bryan Harwell, District
Judge. (0:08-cv-00530-RBH)
Submitted: July 28, 2010 Decided: September 20, 2010
Before DUNCAN and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Greg Gaines, Appellant Pro Se. Donald John Zelenka, Deputy
Assistant Attorney General, Melody Jane Brown, Assistant
Attorney General, Columbia, South Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In appeal No. 09-7903, Greg Gaines seeks to appeal the
district court’s order adopting the magistrate judge’s report
and recommendation and denying relief on his 28 U.S.C. § 2254
(2006) petition. In appeal No. 09-8196, Gaines seeks to appeal
the district court’s subsequent order granting reconsideration,
but again adopting the magistrate judge’s report and
recommendation and denying relief.
In appeal No. 09-7903, the district court’s order was
nullified by the court’s subsequent order, that granted Gaines’
motion for reconsideration and re-evaluated the magistrate
judge’s report and recommendation in light of Gaines’
objections. Thus, this appeal is moot. See Friedman's, Inc. v.
Dunlap, 290 F.3d 191, 197 (4th Cir. 2002)(“When circumstances
change from the time the suit is filed to the time of appeal, so
that the appellate court can no longer serve the intended harm-
preventing function or has no effective relief to offer, the
controversy is no longer live and must be dismissed as
moot.”)(quoting Cnty. Motors, Inc. v. Gen. Motors Corp., 278
F.3d 40, 43 (1st Cir. 2002)). Accordingly, we deny Gaines’
motion for a certificate of appealability in No. 09-7903 and
dismiss that appeal.
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In appeal No. 09-8196, the order is not appealable
unless a circuit justice or judge issues a certificate of
appealability. See 28 U.S.C. § 2253(c)(1) (2006). 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) (2006). When the district court denies
relief on the merits, a prisoner satisfies this standard by
demonstrating 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 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, 529 U.S.
at 484-85. We have independently reviewed the record and
conclude that Gaines has not made the requisite showing.
Accordingly, we deny a certificate of appealability in No. 09-
8196 and dismiss that appeal.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
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before the court and argument would not aid the decisional
process.
DISMISSED
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