Charles Turner, Sr. v. Frank Perry

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to appoint/assign counsel [999801836-2], denying Motion to appoint/assign counsel [999752091-2]; denying Motion for suspension of sentence [999768224-2] Originating case number: 1:15-cv-00361-LCB-LPA Copies to all parties and the district court/agency. [999838807]. Mailed to: Turner. [16-6086]

Appeal: 16-6086

Doc: 18

Filed: 06/01/2016

Pg: 1 of 4

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-6086

CHARLES W. TURNER, SR.,
Petitioner – Appellant,
v.
FRANK PERRY,
Respondent - Appellee.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.
L. Patrick Auld,
Magistrate Judge. (1:15-cv-00361-LCB-LPA)

Submitted:

May 26, 2016

Decided:

June 1, 2016

Before TRAXLER, Chief Judge, and NIEMEYER and FLOYD, Circuit
Judges.

Dismissed by unpublished per curiam opinion.

Charles W. Turner, Sr., Appellant Pro Se. Clarence Joe DelForge,
III, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 16-6086

Doc: 18

Filed: 06/01/2016

Pg: 2 of 4

PER CURIAM:
Charles Turner, Sr., seeks to appeal the magistrate judge’s
report recommending that the district court deny Turner’s 28
U.S.C.

§ 2254

Turner’s

(2012)

case

to

§ 636(b)(1)(B)

a

petition.

The

magistrate

judge

(2012).

The

district

court

pursuant

magistrate

judge

to

referred

28

U.S.C.

recommended

the

court deny the petition and advised Turner that failure to file
timely objections to this recommendation would waive appellate
review of a district court order based upon the recommendation.
On the same day that he filed timely objections, Turner noted an
appeal of the recommendation.

The district court thereafter

accepted the magistrate judge’s recommendation; however, Turner
failed

to

file

an

amended

notice

of

appeal

or

supplemental

informal brief.
We may exercise jurisdiction only over final decisions, 28
U.S.C. § 1291 (2012), and certain interlocutory and collateral
orders.

28

Cohen v.

U.S.C.

Beneficial

(1949).

“Absent

§

1292

Indus.

both

(2012);
Loan

Fed.

Corp.,

designation

by

R.

337

the

Civ.

U.S.

P.

54(b);

541,

545-46

district

court

and

consent of the parties” pursuant to 28 U.S.C. § 636(c) (2012), a
magistrate judge’s report and recommendation is neither a final
order

nor

an

appealable

interlocutory

or

collateral

order.

Haney v. Addison, 175 F.3d 1217, 1219 (10th Cir. 1999); see
Aluminum Co. of Am. v. U.S. Envtl. Prot. Agency, 663 F.2d 499,
2

Appeal: 16-6086

Doc: 18

501-02

Filed: 06/01/2016

(4th

1981)

Cir.

Pg: 3 of 4

(holding

that,

when

a

district

court

specifically refers a dispositive matter to a magistrate judge
under § 636(b)(1)(B), the district court is obligated to conduct
a de novo determination of the magistrate judge’s order).
When a notice of appeal is premature, the jurisdictional
defect can be cured under the doctrine of cumulative finality if
the

district

consideration

court
of

enters

the

a

final

appeal.

judgment

Equip.

Fin.

prior
Group,

to

our

Inc.

v.

Traverse Comput. Brokers, 973 F.2d 345, 347-48 (4th Cir. 1992).
However, not all premature notices of appeal are subject to the
cumulative finality rule; instead, this doctrine applies only if
the

appellant

appeals

from

an

order

that

the

district

court

could have certified for immediate appeal under Fed. R. Civ. P.
54(b).

In re Bryson, 406 F.3d 284, 287-89 (4th Cir. 2005).

A

district court may certify an order for immediate appeal under
Rule

54(b)

if

the

order

entered

is
in

“‘an
the

ultimate
course

of

disposition

of

a

claims

multiple

an

individual

claim

action.’”

Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 7

(1980) (quoting Sears, Roebuck & Co. v. Mackey, 351 U.S. 427,
436 (1956)).
“[A]

premature

notice

of

appeal

from

a

clearly

interlocutory decision” cannot be saved under the doctrine of
cumulative

finality.

Bryson,

406

F.3d

at

288

(internal

quotation marks omitted); see also FirsTier Mortg. Co. v. Inv’rs
3

Appeal: 16-6086

Doc: 18

Filed: 06/01/2016

Pg: 4 of 4

Mortg. Ins. Co., 498 U.S. 269, 276 (1991) (notice of appeal from
a clearly interlocutory decision cannot serve as a notice of
appeal from final judgment).
recommendation

was

Because the magistrate judge’s

interlocutory

and

could

not

have

been

certified under Rule 54(b), the doctrine of cumulative finality
does not apply here.
magistrate

judge’s

jurisdiction.

We

Thus, we dismiss Turner’s appeal of the
report

deny

and

Turner’s

recommendation
motions

counsel and suspension of his sentence.

for

for

lack

of

appointment

of

We dispense with oral

argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.

DISMISSED

4