US v. Larry Brown

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:13-cr-00053-RLV-DCK-11, 5:15-cv-00118-RLV. Copies to all parties and the district court [999838872]. Mailed to: Larry Brown. [16-6099]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-6099

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LARRY DON BROWN,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.
Richard L.
Voorhees,
District
Judge.
(5:13-cr-00053-RLV-DCK-11;
5:15-cv-00118-RLV)

Submitted:

May 26, 2016

Decided:

June 1, 2016

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

Dismissed by unpublished per curiam opinion.

Larry Don Brown, Appellant Pro Se. Amy Elizabeth Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Larry Don Brown seeks to appeal the district court’s order
dismissing without prejudice in part his 28 U.S.C. § 2255 (2012)
motion.

This court may exercise jurisdiction only over final

orders, 28 U.S.C. § 1291 (2012), and certain interlocutory and
collateral orders, 28 U.S.C. § 1292 (2012); Fed. R. Civ. P.
54(b); Cohen

v.

545-47 (1949).

Beneficial

Indus.

Loan

Corp.,

337

U.S.

541,

Because the district court’s order makes clear

that Brown may raise the dismissed claims in a new § 2255 motion
upon the conclusion of his direct appeal, * we conclude that the
order Brown seeks to appeal is neither a final order nor an
appealable

interlocutory

or

collateral

order.

Domino

Sugar

Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064, 1066-67
(4th Cir. 1993).

*

Brown appears to appeal the district court’s determination
out of concern that he will be barred from filing a later § 2255
motion. However:
If a habeas petitioner (state or federal) files an
application for collateral relief that raises a
successful appeal claim and additional claims, any
subsequent petition will be considered ‘second or
successive’ [only] if (a) the district court ruled on
the merits of the additional claims in the initial
petition, and (b) the petitioner seeks to raise those
claims again in the subsequent petition.
In re Williams, 444 F.3d 233, 236 (4th Cir. 2006).

2

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Accordingly,
jurisdiction.

we

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dismiss

the

appeal

for

lack

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

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