GWYNN v. CLARKE (2019)

United States Court of Appeals, Fourth Circuit.

Donte Jamar GWYNN, Petitioner - Appellant, v. Harold W. CLARKE, Respondent - Appellee.

No. 18-7153

Decided: February 14, 2019

Before MOTZ and DIAZ, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Donte Gwynn, Appellant Pro Se.

Donte Gwynn appeals the district court's order accepting the recommendation of the magistrate judge in part and dismissing his 28 U.S.C. § 2254 (2012) petition as successive. We have reviewed the record and find no reversible error. The court's dismissal, however, should have been without prejudice because Gwynn did not obtain prefiling authorization to file his successive petition in the district court. Accordingly, we affirm for the reasons stated by the district court, Gwynn v. Clarke, No. 2:18-cv-00241-MSD-RJK (E.D. Va. Sept. 10, 2018), but modify the order to reflect dismissal without prejudice for lack of subject matter jurisdiction. We grant leave to proceed in forma pauperis, deny Gwynn's motion to appoint counsel and 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 AS MODIFIED

PER CURIAM:

Affirmed as modified by unpublished per curiam opinion. Unpublished opinions are not binding precedent in this circuit.

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