United States v. Perkins , 53 F. App'x 667 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-7139
TROY LEMONT PERKINS,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Benson E. Legg, District Judge.
(CR-95-337-L, CA-02-116-L)
Submitted: November 5, 2002
Decided: December 16, 2002
Before MOTZ and GREGORY, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Troy Lemont Perkins, Appellant Pro Se. Christine Manuelian,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. PERKINS
OPINION
PER CURIAM:
Troy Lemont Perkins was convicted of conspiracy to possess with
intent to distribute cocaine base in violation of 21 U.S.C. § 846(2000). He was sentenced in January 2001. Perkins filed a habeas
motion in the district court pursuant to 28 U.S.C. § 2255 (2000). On
March 27, 2002, Perkins filed a "Motion for Release on Bail Pending
Decision on Petitioner’s 28 U.S.C. § 2255." The district court denied
this motion in a marginal order on July 8. Two days later, Perkins
filed a "Request for Certification for Interlocutory Appeal Pursuant to
28 U.S.C. § 1292(b) and Fed. R. Civ. P. 54(b) Certification." The dis-
trict court construed the motion as a notice of appeal. Perkins objects
to this characterization in his informal brief, arguing that this appeal
is interlocutory because he filed his "Request for Certification" under
the assumption that the district court would enter a final order dispos-
ing of the motion from which he could appeal.*
We may exercise jurisdiction only over final orders, see 28 U.S.C.
§ 1291 (1994), and certain interlocutory and collateral orders. See 28
U.S.C. § 1292 (2000); Fed. R. Civ. P. 54(b); Cohen v. Beneficial
Indus. Loan Corp., 337 U.S. 541 (1949). A "final order" is defined
as one that ends the litigation on the merits and leaves nothing for the
court to do but execute the judgment. Catlin v. United States, 324
U.S. 229, 233 (1945). In contrast, to fall within the collateral order
doctrine, an order must: (1) conclusively determine the disputed ques-
tion; (2) resolve an important question independent of the merits; (3)
be effectively unreviewable on appeal from a final judgment or so
important that review cannot wait; and (4) present a serious and
unsettled question upon appeal. See Carolina Power & Light Co. v.
United States Dep’t of Labor, 43 F.3d 912, 916 (4th Cir. 1995).
*Although the district court could have filed a separate order address-
ing the "Request for Certification" in accordance with § 1292(b), it was
not remiss to consider the motion a notice of appeal. Perkins himself
argued that the denial of bail in habeas proceedings is appealable under
the collateral order doctrine. Further, he obviously wished to appeal the
denial of bail since he requested the district court to file an order endors-
ing an immediate appeal, and he was well aware that the denial of his
motion for release on bail could only be reviewed at that time.
UNITED STATES v. PERKINS 3
The Supreme Court has long held that a pre-trial order denying a
motion to reduce bail in a criminal prosecution is appealable as a col-
lateral order. See Stack v. Boyle, 342 U.S. 1, 12 (1951). We agree with
the majority of the circuits that have extended the collateral order
doctrine to encompass an order denying a motion for release on bail
pending disposition of a motion to vacate under 28 U.S.C. §§ 2254,
2255 (2000). See, e.g., Lee v. Jabe, 989 F.2d 869, 870 (6th Cir. 1993);
Dotson v. Clark, 900 F.2d 77, 78 (6th Cir. 1990); United States v.
Smith, 835 F.2d 1048, 1049 (3d Cir. 1987); Martin v. Solem, 801 F.2d
324, 328 (8th Cir. 1986); Guerra v. Meese, 786 F.2d 414, 418 (D.C.
Cir. 1986); Cherek v. United States, 767 F.2d 335, 337 (7th Cir.
1985); Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir. 1981).
To prevail on a motion for release on bail in a habeas case, the
appellant must show that his petition presents a substantial constitu-
tional claim upon which he has a high probability of success, and that
extraordinary circumstances warrant his release. See Aronson v. May,
85 S. Ct. 3 (1964). Upon careful review, we conclude that Perkins has
not made such a showing.
Accordingly, we affirm the judgment of the district court. We dis-
pense 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