US v. Johnnie Moore

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion to reconsider [1000063814-2] denied in 17-6129,Motion to reconsider [1000055663-2] denied in 17-6129; Motion for writ of mandamus (FRAP 21) [1000056798-2] denied in 17-6129. Originating case number: 1:15-cr-00216-LCB-1,1:16-cv-01254-LCB-LPA Copies to all parties and the district court. [1000123666]. Mailed to: Johnnie Ray Moore. [17-6129, 17-6564]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 17-6129

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHNNIE RAY MOORE,
Defendant - Appellant.

No. 17-6564

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHNNIE RAY MOORE,
Defendant - Appellant.

Appeals from the United States District Court for the Middle District of North Carolina,
at Greensboro. Loretta Copeland Biggs, District Judge. (1:15-cr-00216-LCB-1; 1:16-cv01254-LCB-LPA)

Submitted: July 20, 2017

Decided: July 24, 2017

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Before DUNCAN and WYNN, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Johnnie Ray Moore, Appellant Pro Se. Angela Hewlett Miller, Assistant United States
Attorney, Kristin Jo Uicker, Special Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
In these consolidated appeals, Johnny Ray Moore seeks to appeal the district
court’s order accepting the recommendation of the magistrate judge to deny relief on
Moore’s 28 U.S.C. § 2255 (2012) motion and the magistrate judge’s postjudgment order
denying Moore’s request for a transcript and other documents at government expense.
Moore also petitions for a writ of mandamus, seeking an order directing the district court
to provide the requested materials at government expense.
As to the denial of § 2255 relief, the court’s order is not appealable unless a circuit
justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) (2012). A
certificate of appealability will not issue absent “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). When the district court denies
relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable
jurists would find that the district court’s assessment of the constitutional claims is
debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v.
Cockrell, 537 U.S. 322, 336-38 (2003).

When the district court denies relief on

procedural grounds, the prisoner must demonstrate both that the dispositive procedural
ruling is debatable, and that the motion states a debatable claim of the denial of a
constitutional right. Slack, 529 U.S. at 484-85.
We have independently reviewed the record and conclude that Moore has not
made the requisite showing. Accordingly, we deny a certificate of appealability and
dismiss the appeal of that order.

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Turning to the magistrate judge’s order denying Moore’s request for materials at
government expense, 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. Beneficial Indus. Loan Corp., 337 U.S.
541, 545-46 (1949). A magistrate judge’s order generally is not a final order subject to
immediate appeal. Donaldson v. Ducote, 373 F.3d 622, 624 (5th Cir. 2004). Here, the
magistrate judge did not have jurisdiction to enter a final, appealable postjudgment order.
See 28 U.S.C. § 636 (2012); Estate of Conners v. O’Connor, 6 F.3d 656, 658-59 (9th Cir.
1993). Because the order Moore seeks to appeal is neither a final order nor an appealable
interlocutory or collateral order, we lack jurisdiction to consider his appeal of that order.
Finally, Moore’s mandamus petition seeks an order directing the district court to
provide him with documents from his criminal proceedings and a transcript of the plea
hearing at government expense. Mandamus relief is a drastic remedy and should be used
only in extraordinary circumstances. Kerr v. U.S. Dist. Court, 426 U.S. 394, 402 (1976);
United States v. Moussaoui, 333 F.3d 509, 516-17 (4th Cir. 2003). Further, mandamus
relief is available only when the petitioner has a clear right to the relief sought. In re
First Fed. Sav. & Loan Ass’n, 860 F.2d 135, 138 (4th Cir. 1988). Because Moore fails to
demonstrate a need for the documents he requests, we conclude that he is not entitled to
mandamus relief.
Accordingly, we deny Moore’s petition for a writ of mandamus, deny a certificate
of appealability, and dismiss the appeals.

We also deny Moore’s motions for

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

DISMISSED

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