Kyle v. Coleman , 67 F. App'x 781 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
FORREST RAY KYLE, 
Petitioner-Appellant,
v.
 No. 02-7830
MIKE COLEMAN, Warden, Mount
Olive Correctional Complex,
Respondent-Appellee.

Appeal from the United States District Court
for the Northern District of West Virginia, at Elkins.
Robert E. Maxwell, Senior District Judge.
(CA-02-10-2)
Submitted: April 8, 2003
Decided: May 30, 2003
Before LUTTIG, MICHAEL, and MOTZ, Circuit Judges.
Dismissed by unpublished per curiam opinion.
COUNSEL
Paul Raymond Stone, Jr., Charleston, West Virginia; Richard M. Gut-
mann, Morgantown, West Virginia, for Appellant. Darrell V.
McGraw, Jr., Dawn Ellen Warfield, John Rufus Blevins, OFFICE OF
THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston,
West Virginia, for Appellee.
2 KYLE v. COLEMAN
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Forrest Kyle appeals from the district court’s order accepting the
magistrate judge’s recommendation to deny relief on Claims 1, 2, 3,
7, and 9 in his petition filed under 28 U.S.C. § 2254 (2000). The dis-
trict court certified the order for interlocutory appeal pursuant to Fed.
R. Civ. P. 54(b). Although neither party has challenged the district
court’s certification of this appeal under Rule 54(b), we must consider
sua sponte the issue of whether the district court’s entry of final judg-
ment was warranted because it involves the scope of our jurisdiction.*
Braswell Shipyards, Inc. v. Beazer East, Inc., 2 F.3d 1331, 1336 (4th
Cir. 1993). We dismiss the appeal for lack of jurisdiction.
Certification pursuant to Rule 54(b) is disfavored in this circuit. Id.
at 1335. In certifying an appeal, the district court must determine
"whether there is no just reason for the delay in the entry of judg-
ment." Id. Although we have set forth factors a court should consider
in making such determination, id. at 1335-36, the district court did not
address any of those factors in its order. "The expression of clear and
cogent findings of fact is crucial" for appellate review of the court’s
certification decision. Id. at 1336. While the district court found that
an immediate appeal would expedite and simplify the complex issues
in Kyle’s case, that finding is not supported by the record.
Accordingly, we dismiss the appeal for lack of jurisdiction. See
Braswell, 2 F.3d at 1335-36; see also Curtiss-Wright Corp. v. Gen.
Elec. Co., 446 U.S. 1, 10 (1980) (discussing standard of review). We
*Although Kyle filed his notice of appeal before the district court cer-
tified the order under Rule 54(b), we have adopted the majority view in
holding that "absent prejudice to the appellee, the district court’s Rule
54(b) certification may follow the notice of appeal." Harrison v. Edison
Bros. Apparel Stores, Inc., 924 F.2d 530, 532 (4th Cir. 1991).
KYLE v. COLEMAN 3
deny Kyle’s motions for appointment of counsel and for postpone-
ment of appeal. 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.
DISMISSED