Dominique Gray v. Johnny Hawkins

• Court: Court of Appeals for the Fourth Circuit
• Decided: May 11, 2018
• Docket: 17-7515
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 17-7515

DOMINIQUE VENCENTIN GRAY,

Petitioner - Appellant,

v.

JOHNNY HAWKINS, Superintendent; ROY COOPER, Attorney General of the State of North Carolina,

Respondents - Appellees.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:16-hc-02142-BO)

Submitted: March 19, 2018 Decided: May 11, 2018

Before WILKINSON, TRAXLER, and HARRIS, Circuit Judges.

Dismissed and remanded by unpublished per curiam opinion.

Dominique Vencentin Gray, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Dominique Vencentin Gray seeks to appeal the district court’s order granting

Respondents’ motion for summary judgment and denying relief on his 28 U.S.C. § 2254

(2012) petition. Although “[t]he parties . . . have not questioned our jurisdiction . . . , we

have an independent obligation to verify the existence of appellate jurisdiction” and may

exercise jurisdiction only over final orders and certain interlocutory and collateral orders.

Porter v. Zook, 803 F.3d 694, 696 (4th Cir. 2015) (internal quotation marks omitted); see

28 U.S.C. §§ 1291, 1292 (2012). “Ordinarily, a district court order is not final until it has

resolved all claims as to all parties.” Porter, 803 F.3d at 696 (internal quotation marks

omitted). “Regardless of the label given a district court decision, if it appears from the

record that the district court has not adjudicated all of the issues in a case, then there is no

final order.” Id.

Applying the liberal construction due to Gray’s pro se § 2254 petition, see

Erickson v. Pardus, 551 U.S. 89, 94 (2007), Gray alleged two related but distinct claims

challenging the state superior court’s determination of his prior record level at his

sentencing hearing. First, Gray argued that the superior court violated his right to due

process by relying on inaccurate information. See United States v. Nichols, 438 F.3d 437,

440 (4th Cir. 2006). Second, Gray contended that reclassifying his North Carolina

conviction for assault with a deadly weapon inflicting serious injury from a Class H

felony to a Class E or F felony violated the Ex Post Facto Clause. See U.S. Const. art. I,

§ 10, cl. 1; Peugh v. United States, 569 U.S. 530, 538-39 (2013) (explaining different

categories of laws prohibited by Ex Post Facto Clause). To the extent that Gray’s ex post

2 facto claim was not elaborately defined in his petition, Gray’s memorandum in response

to Respondents’ summary judgment motion confirmed his pursuit of the claim.

However, the district court’s order granting Respondents’ summary judgment motion and

denying Gray’s § 2254 petition failed to address Gray’s ex post facto claim. Because the

district court did not resolve this claim, we are constrained to conclude that we lack

jurisdiction over this appeal. See Porter, 803 F.3d at 695, 699.

Accordingly, we deny leave to proceed in forma pauperis, dismiss the appeal, and

remand to the district court for consideration of Gray’s ex post facto claim. We express

no opinion regarding the claim or the district court’s resolution of Gray’s due process

claim. 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 AND REMANDED