Kenneth Newkirk v. Director

• Court: Court of Appeals for the Fourth Circuit
• Decided: January 30, 2023
• Docket: 22-7253
• Status: Unpublished

Opinion

USCA4 Appeal: 22-7253 Doc: 17 Filed: 01/30/2023 Pg: 1 of 4

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-6822

KENNETH H. NEWKIRK,

Petitioner - Appellant,

v.

DIRECTOR, Dept. of Corrections,

Respondent - Appellee.

No. 22-7253

Appeals from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, Senior District Judge. (3:22-cv-00369-HEH-EWH)

Submitted: January 6, 2023 Decided: January 30, 2023 USCA4 Appeal: 22-7253 Doc: 17 Filed: 01/30/2023 Pg: 2 of 4

Before KING and QUATTLEBAUM, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Kenneth H. Newkirk, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

In No. 22-6822, Kenneth H. Newkirk appeals the district court’s order dismissing

his 28 U.S.C. § 2254 petition without prejudice for failure to comply with the court’s prior

order. A district court has the authority to dismiss an action for a party’s failure to comply

with its orders, and we review a court’s decision to dismiss for failure to comply for an

abuse of discretion. See Fed. R. Civ. P. 41(b); Attkisson v. Holder, 925 F.3d 606, 620, 625-

27 (4th Cir. 2019); Ballard v. Carlson, 882 F.2d 93, 95-96 (4th Cir. 1989). Here, after

dismissing one of Newkirk’s prior § 2254 petitions for failure to exhaust his state court

remedies, the district court directed Newkirk to include a statement on the front page of

any future § 2254 petition stating that he has exhausted his state court remedies. And the

court warned that failure to comply would result in dismissal. Newkirk did not comply

with the court’s order, and his assertion that he was not required to exhaust his state court

remedies before filing his petition is without merit. See 28 U.S.C. § 2254(b)-(c).

Accordingly, we conclude that the district court did not abuse its discretion in dismissing

Newkirk’s § 2254 petition and affirm the district court’s judgment. Newkirk v. Dir., Dep’t

of Corr., No. 3:22-cv-00369-HEH-EWH (E.D. Va. June 21, 2022); see Ballard, 882 F.2d

at 95-96 (holding that district court did not abuse discretion when it dismissed case for

failure to comply with prior order after explicitly warning that dismissal would result from

failure to comply).

In No. 22-7253, Newkirk appeals the district court’s order denying his emergency

motion for an appeal bond, home confinement, and an injunction. We have reviewed the

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record and find no reversible error. Accordingly, we affirm the district court’s judgment.

Newkirk v. Dir., Dep’t of Corr., No. 3:22-cv-00369-HEH-EWH (E.D. Va. Oct. 6, 2022).

For both cases, we deny a certificate of appealability as unnecessary, see

Harbison v. Bell, 556 U.S. 180, 183 (2009); United States v. McRae, 793 F.3d 392, 399-

400 (4th Cir. 2015), and deny as moot Newkirk’s motions for bail or release pending appeal

and his motion for an emergency hearing. 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.

AFFIRMED