United States v. DeTemple , 31 F. App'x 237 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-6848
GARY L. DETEMPLE,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., District Judge.
(CR-93-77)
Submitted: March 14, 2002
Decided: March 26, 2002
Before NIEMEYER and KING, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
COUNSEL
Gary L. DeTemple, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. DETEMPLE
OPINION
PER CURIAM:
Gary DeTemple appeals the district court’s orders denying multiple
motions in his 28 U.S.C.A. § 2255 (West Supp. 2001) action, which
remains pending in the district court. On appeal, DeTemple claims
that the district court erred in: (1) denying his motions for recusal; (2)
failing to grant him bond pending the disposition of his § 2255 action;
and (3) the denial of his motion to stay the collection of his special
assessment. We affirm in part and dismiss in part.
As to the district court’s denial of DeTemple’s motion for recusal,
we dismiss the appeal for lack of jurisdiction because the order is not
appealable. This court may exercise jurisdiction only over final
orders, 28 U.S.C. § 1291 (1994), and certain interlocutory and collat-
eral orders, 28 U.S.C. § 1292 (1994); Fed. R. Civ. P. 54(b); Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541 (1949). The order here
appealed is neither a final order nor an appealable interlocutory or
collateral order.
Next, DeTemple appeals the district court order denying his request
for release on bond pending the disposition of his § 2255 action. A
denial of bond is an appealable collateral order. See United States v.
Smith, 835 F.2d 1048, 1049-50 (3d Cir. 1987); Cherek v. United
States, 767 F.2d 335, 337 (7th Cir. 1985). A person seeking interim
release during pursuit of § 2255 relief, however, faces a formidable
barrier created by the fact of conviction and the government’s interest
in executing its judgment. "[I]n the absence of exceptional circum-
stances . . . the court will not grant bail prior to the ultimate final deci-
sion unless [the applicant] presents not merely a clear case on the law,
. . . but a clear, and readily evident, case on the facts." Glynn v. Don-
nelly, 470 F.2d 95, 98 (1st Cir. 1972) (citation omitted); see also Mar-
tin v. Solem, 801 F.2d 324, 329 (8th Cir. 1986). Having reviewed the
record, we find DeTemple has failed to meet this burden. We there-
fore affirm the district court’s order denying DeTemple’s request for
release on bond.
Finally, DeTemple appeals the denial of his motion to stay the col-
lection of his special assessment. Specifically, DeTemple challenges
UNITED STATES v. DETEMPLE 3
the methods and amounts employed by the Bureau of Prisons to col-
lect the special assessment. This court has held in United States v.
Miller, 77 F.3d 71, 78 (4th Cir. 1996), that a district court may not
delegate its authority to set the amount and timing of fine payments
to the Bureau of Prisons. Because the district court instructed DeTem-
ple to pay the special assessment amount immediately, and further set
a schedule of monthly payments of at least $50 per month, the district
court satisfied the requirements of Miller. We therefore affirm the dis-
trict court’s order denying DeTemple’s motion to stay collection.
Accordingly, we dismiss DeTemple’s appeal as to the motions for
recusal and affirm the district court as to DeTemple’s motion for bond
and motion to stay collection. 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.
AFFIRMED IN PART, DISMISSED IN PART