Montavius Antoine Johnson v. David Mitchell


UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion for temporary administrative stay [999958380-2]; denying Motion to amend/correct [999951501-2]; denying Motion for other relief [999951497-2], denying Motion for other relief [999945902-2], denying Motion for other relief [999945893-2]; denying Motion to appoint/assign counsel [999945897-2] Originating case number: 3:16-cv-00003-FDW Copies to all parties and the district court/agency. [1000061309]. Mailed to: Montavius Antoine Johnson LANESBORO CORRECTIONAL INSTITUTION P. O. Box 280 Polkton, NC 28135-0000. [16-7216]

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Appeal: 16-7216 Doc: 19 Filed: 04/13/2017 Pg: 1 of 3 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-7216 MONTAVIUS ANTOINE JOHNSON, Petitioner - Appellant, v. DAVID MITCHELL, Respondent - Appellee. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, Chief District Judge. (3:16-cv-00003-FDW) Submitted: April 11, 2017 Decided: April 13, 2017 Before SHEDD, DUNCAN, and AGEE, Circuit Judges. Dismissed and remanded by unpublished per curiam opinion. Montavius Antoine Johnson, 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 Unpublished opinions are not binding precedent in this circuit.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: 16-7216 Doc: 19 Filed: 04/13/2017 Pg: 2 of 3 PER CURIAM: Montavius Antoine Johnson seeks to appeal the district court’s order dismissing his 28 U.S.C. § 2254 (2012) petition as untimely. Although “[t]he parties . . . have not questioned our jurisdiction . . . , we have an independent obligation to verify the existence of appellate jurisdiction” and may exercise jurisdiction only over final orders and certain interlocutory and collateral orders. Porter v. Zook, 803 F.3d 694, 696 (4th Cir. 2015) (internal quotation marks omitted); see 28 U.S.C. § 1292 (2012); Fed. R. Civ. P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-46 (1949). “Ordinarily, a district court order is not final until it has resolved all claims as to all parties.” Porter, 803 F.3d at 696 (internal quotation marks omitted). “Regardless of the label given a district court decision, if it appears from the record that the district court has not adjudicated all of the issues in a case, then there is no final order.” Id. In this case, the district court failed to consider Johnson’s claims that his petition was timely pursuant to 28 U.S.C. § 2244(d)(1)(C), (D) (2012). Because the district court did not rule on those claims, it “never issued a final decision” in this matter. Id. at 699. Accordingly, we dismiss the appeal for lack of jurisdiction and remand to the district court for consideration of Johnson’s remaining claims. We express no opinion on the ultimate disposition of those claims, and we deny Johnson’s motions to expand the record, to appoint counsel, for discovery, for harmless error review, to amend his brief and motions, and to stay his appeal. We dispense with oral argument because the facts and legal 2 Appeal: 16-7216 Doc: 19 Filed: 04/13/2017 Pg: 3 of 3 contentions are adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED AND REMANDED 3

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