78 F.3d 579
NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Larry L. STEWART, Petitioner-Appellant,
v.
Ronald J. ANGELONE, Director of the Virginia Department of
Corrections, Respondent-Appellee.
Larry L. STEWART, Petitioner-Appellant,
v.
Ronald J. ANGELONE, Director of the Virginia Department of
Corrections, Respondent-Appellee.
Nos. 95-6919, 95-7236.
United States Court of Appeals, Fourth Circuit.
Submitted Sept. 19, 1995.
Decided March 11, 1996.
Before WIDENER, HALL, and WILLIAMS, Circuit Judges.
OPINION
PER CURIAM:
In these consolidated appeals, Larry Stewart seeks to appeal the district court's order denying relief on his 28 U.S.C. § 2254 (1988) petition, and the district court's order denying him leave to proceed on appeal in forma pauperis. Our review of the record in appeal number 95-6919 reveals that Stewart's habeas petition contained both exhausted and unexhausted claims, including an unexhausted claim of actual innocence based on an affidavit of the victim of the crime underlying Stewart's conviction. Because of Stewart's unexhausted claim of actual innocence, which was based on newly discovered evidence, the district court should have either dismissed Stewart's entire petition without prejudice, or permitted Stewart to amend his petition to drop this unexhausted claim. See Rose v. Lundy, 455 U.S. 509, 520, 522 (1982). Accordingly, in appeal number 95-6919 we grant leave to proceed in forma pauperis and a certificate or probable cause to appeal, vacate the district court's order, and remand for further proceedings consistent with these options.
Regarding appeal number 95-7236, we note that Fed. R.App. P. 24(a) does not contemplate appeals from district court orders denying leave to proceed in forma pauperis on appeal, but rather directs a litigant whose motion is denied by the district court to file a successive and independent motion for such relief in the court of appeals. See United States v. Boutwell, 896 F.2d 884, 889 (5th Cir.1990). Stewart did not file such a motion and were we to construe his appeal as such a motion, it would be denied. We therefore deny a certificate of probable cause to appeal, deny leave to proceed in forma pauperis, and dismiss appeal number 95-7236. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
No. 95-6919--VACATED AND REMANDED.
No. 95-7236--DISMISSED.
