John W. Ickes, Jr. v. Warden of the Greensville Correctional Center

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-6378
JOHN W. ICKES, JR.,
Petitioner - Appellant,
v.
WARDEN OF THE GREENSVILLE CORRECTIONAL CENTER,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Senior
District Judge. (3:14-cv-00028-JRS-RCY)
Submitted: July 27, 2015 Decided: July 30, 2015
Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
John Woodward Ickes, Jr., Appellant Pro Se. John H. McLees,
Jr., OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

-- 1 of 3 --

2
PER CURIAM:
John Woodward Ickes, Jr., seeks to appeal the district
court’s order accepting the recommendation of the magistrate
judge and dismissing his 28 U.S.C. § 2254 (2012) petition for
failure to exhaust state court remedies. The order is not
appealable unless a circuit justice or judge issues a
certificate of appealability. See 28 U.S.C. § 2253(c)(1)(A)
(2012). 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) (2012). 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
Ickes has made the requisite showing for issuance of a
certificate of appealability. However, an alternative
jurisdictional procedural ground for dismissal appears on the

-- 2 of 3 --

3
face of the record—specifically, the state court issued a civil
commitment order while the § 2254 proceedings were pending,
thereby rendering the § 2254 petition moot. Accordingly, we
grant a certificate of appealability, vacate the district
court’s order, remand the case to the district court, and
instruct the district court to dismiss the petition for lack of
jurisdiction. See Reid v. Angelone, 369 F.3d 363, 372 & n.5,
374 & n.7 (4th Cir. 2004) (outlining procedures). 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.
VACATED AND REMANDED

-- 3 of 3 --