Robert Samuel Eakes v. Warden McCall

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7761
ROBERT SAMUEL EAKES,
Petitioner - Appellant,
v.
WARDEN MCCALL,
Respondent - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Aiken. J. Michelle Childs, District Judge.
(1:11-cv-00571-JMC)
Submitted: July 9, 2013 Decided: July 18, 2013
Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
John J. Korzen, WAKE FOREST UNIVERSITY, Winston-Salem, North
Carolina, for Appellant. Melody Jane Brown, Assistant Attorney
General, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
On October 10, 2012, Robert Samuel Eakes appealed the
district court’s orders denying relief on his 28 U.S.C. § 2254
(2006) petition and denying his Fed. R. Civ. P. 59(e) motion.
On June 11, 2013, we granted Eakes leave to proceed in forma
pauperis, granted a certificate of appealability on one of the
issues raised in his informal brief, and appointed counsel on
Eakes’ behalf. When Eakes’ appointed counsel attempted to
contact Eakes, he discovered that Eakes had died of natural
causes on November 21, 2012, shortly after Eakes noted his
appeal but before we granted a certificate of appealability.
Eakes’ counsel promptly filed a suggestion of death, see Fed. R.
App. P. 43(a)(1), and we directed the parties to provide their
views on how this case should proceed.
Because Eakes had passed away at the time we entered
the June 11 order, we vacate that order, deny Eakes leave to
proceed in forma pauperis, deny a certificate of appealability,
and dismiss the appeal as moot. See Hailey v. Russell, 394 U.S.
915, 915 (1969) (concluding that habeas petition rendered
“moot[] by reason of [the] death of petitioner”); McMillin v.
Bowersox, 102 F.3d 987, 987 (8th Cir. 1996) (“Since
[petitioner’s] imprisonment ended upon his death, and there can
be no future collateral consequences flowing from his
imprisonment, his collateral attack is moot.”). Moreover,

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having now denied a certificate of appealability, we decline
Eakes’ counsel’s invitation to vacate the district court’s order
and remand with instructions to dismiss Eakes’ § 2254 petition
as moot, as we are without jurisdiction to do so. See Miller-
El v. Cockrell, 537 U.S. 322, 335-36 (2003) (holding that
issuance of certificate of appealability is “jurisdictional
prerequisite” to appellate court’s review of denial of habeas
relief); Krantz v. United States, 224 F.3d 125, 127 (2d Cir.
2000) (declining to vacate district court’s habeas ruling and
remand with instructions to dismiss as moot because court of
appeals “did not have appellate jurisdiction at the time of
petitioner’s death [as] a certificate of appealability had not
yet issued”).
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.
DISMISSED

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