Eugene King v. Robert M. 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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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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