Scribd Logo
Upload

Welcome to Scribd!

  • 2 views

    Mitchell v. Smith, 4th Cir. (2004)

    Uploaded by

    Scribd Government Docs
    The United States Court of Appeals for the Fourth Circuit dismissed Emory Mitchell's appeal for lack of jurisdiction. The district court had denied Mitchell's habeas corpus petition but later granted his Rule 60(b) motion to vacate that order and reissue the magistrate's recommendation so that Mitchell could file objections. As there was no final order entered in the case, the appeals court did not have jurisdiction and dismissed the appeal.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Flag for inappropriate content

    You might also like

    Mitchell v. Smith, 4th Cir. (2004)

    Uploaded by

    Scribd Government Docs
    2 views2 pages
    The United States Court of Appeals for the Fourth Circuit dismissed Emory Mitchell's appeal for lack of jurisdiction. The district court had denied Mitchell's habeas corpus petition but later granted his Rule 60(b) motion to vacate that order and reissue the magistrate's recommendation so that Mitchell could file objections. As there was no final order entered in the case, the appeals court did not have jurisdiction and dismissed the appeal.

    Original Description:

    Filed: 2004-12-15 Precedential Status: Non-Precedential Docket: 04-6868

    Copyright

    © Public Domain

    Available Formats

    PDF or read online from Scribd

    Did you find this document useful?

    Is this content inappropriate?

    Report this Document
    The United States Court of Appeals for the Fourth Circuit dismissed Emory Mitchell's appeal for lack of jurisdiction. The district court had denied Mitchell's habeas corpus petition but later granted his Rule 60(b) motion to vacate that order and reissue the magistrate's recommendation so that Mitchell could file objections. As there was no final order entered in the case, the appeals court did not have jurisdiction and dismissed the appeal.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    Download as pdf
    2 views2 pages

    Mitchell v. Smith, 4th Cir. (2004)

    Uploaded by

    Scribd Government Docs
    The United States Court of Appeals for the Fourth Circuit dismissed Emory Mitchell's appeal for lack of jurisdiction. The district court had denied Mitchell's habeas corpus petition but later granted his Rule 60(b) motion to vacate that order and reissue the magistrate's recommendation so that Mitchell could file objections. As there was no final order entered in the case, the appeals court did not have jurisdiction and dismissed the appeal.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    Download as pdf
    of 2

    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 courts
    April 8, 2004, order, denying his 28 U.S.C. 2254 (2000) petition,
    because he failed to object to the magistrate judges report and
    recommendation.

    Because Mitchell informed the court that he did

    not receive the magistrate judges report and recommendation, the


    district court granted Mitchells Fed. R. Civ. P. 60(b) motion,
    vacated its April 8th order, and reissued the recommendation so
    that Mitchell could object.
    entered in the case.
    over

    final

    orders,

    Thus, there has been no final order

    This court may exercise jurisdiction only


    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).
    order

    nor

    The order Mitchell seeks to appeal is neither a final


    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

    - 2 -

    You might also like