United States v. Billingsley , 127 F. App'x 668 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7851
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ELLIS DEWAYNE BILLINGSLEY,
Defendant - Appellant.
No. 04-7956
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ELLIS DEWAYNE BILLINGSLEY,
Defendant - Appellant.
Appeals from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley, Jr.,
Chief District Judge. (CR-98-47; CA-04-445)
Submitted: April 28, 2005 Decided: May 4, 2005
Before WILLIAMS, KING, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Ellis Dewayne Billingsley, Appellant Pro Se. Walter C. Hohn,
OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
- 2 -
PER CURIAM:
In appeal No. 04-7851, Ellis Dewayne Billingsley appeals
the magistrate judge’s order construing his motion for a sentence
reduction under 18 U.S.C. § 3553 (2000), as an improperly filed 28
U.S.C. § 2255 (2000) motion, and dismissing the action without
prejudice to his right to refile a proper § 2255 motion. See
United States v. Billingsley, No. CR-98-47 (E.D.N.C. Nov. 15,
2004).
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
magistrate judge’s order is neither a final order nor an appealable
interlocutory or collateral order. United States v. Bryson, 981
F.2d 720, 723 (4th Cir. 1992) (magistrate judge may hear matters in
§ 2255 proceedings, but may not decide them absent explicit
consent). Moreover, where a dispositive matter is referred to the
magistrate judge under 28 U.S.C.A. § 636(b) (West Supp. 2004),
parties must have the opportunity to object, and the district court
is required to conduct de novo review of the portions of the
recommendation to which objections are made. Bryson, 981 F.2d at
723. Accordingly, we dismiss the appeal for lack of jurisdiction.
In appeal No. 04-7956, Billingsley appeals the district
court’s order accepting the recommendation of the magistrate judge
- 3 -
to dismiss, without prejudice, his motion for a sentence reduction
as an improperly filed 28 U.S.C. § 2255 (2000) motion. The
district court dismissed the action without prejudice to petitioner
filing a corrected motion on the proper § 2255 forms. See United
States v. Billingsley, No. CA-04-445 (E.D.N.C. Oct. 1, 2004).
Instead of heeding the court’s advice, Billingsley appealed.
Because the dismissal order is without prejudice, and Billingsley
may file an amended complaint in the district court by submitting
it on the proper forms, we conclude that this order is
interlocutory and thus, not appealable. Domino Sugar Corp. v.
Sugar Workers Local Union 392, 10 F.3d 1064, 1066-67 (4th Cir.
1993) (holding that a dismissal without prejudice is a final order
only if “no amendment [to the complaint] could cure the defects in
the plaintiff’s case.”) (internal quotation marks and citation
omitted)). Accordingly, we 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.
No. 04-7851 - DISMISSED
No. 04-7956 - DISMISSED
- 4 -