Mitchell v. Smith , 115 F. App'x 642 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-6868
EMORY MITCHELL,
Petitioner - Appellant,
versus
RICHARD SMITH, Warden; HENRY MCMASTER,
Attorney General of South Carolina,
Respondents - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Beaufort. Henry M. Herlong, Jr., District
Judge. (CA-03-2529-9-20BG)
Submitted: December 9, 20004 Decided: December 15, 2004
Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Emory Mitchell, Appellant Pro Se. Donald John Zelenka, Chief Deputy
Attorney General, John William McIntosh, Assistant Attorney
General, Samuel Creighton Waters, OFFICE OF THE ATTORNEY GENERAL OF
SOUTH CAROLINA, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Emory Mitchell seeks to appeal the district court’s
April 8, 2004, order, denying his 28 U.S.C. § 2254 (2000) petition,
because he failed to object to the magistrate judge’s report and
recommendation. Because Mitchell informed the court that he did
not receive the magistrate judge’s report and recommendation, the
district court granted Mitchell’s Fed. R. Civ. P. 60(b) motion,
vacated its April 8th order, and reissued the recommendation so
that Mitchell could object. Thus, there has been no final order
entered in the case. This court may exercise jurisdiction only
over final orders, 28 U.S.C. § 1291 (2000), and certain
interlocutory and collateral orders, 28 U.S.C. § 1292 (2000); Fed.
R. Civ. P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S.
541 (1949). The order Mitchell seeks to appeal is neither a final
order nor an appealable interlocutory or collateral order.
Accordingly, we deny a certificate of appealability and dismiss the
appeal for lack of jurisdiction. 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
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