USA v. Frye

Filing

USA v. Frye

Doc. 0

Case: 08-60741

Document: 00511170175

Page: 1

Date Filed: 07/12/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
July 12, 2010 N o . 08-60741 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. J A M E S EDWARD FRYE, also known as Sealed Defendant 2, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court for the Southern District of Mississippi U S D C No. 4:01-CR-8-2

B e fo r e DAVIS, SMITH, and HAYNES, Circuit Judges. P E R CURIAM:* O n February 3, 2005, a jury convicted federal prisoner James Edward F r y e , of one count each of conspiracy, carjacking resulting in death, use of a fir e a r m during and in relation to a crime of violence, and interstate t r a n s p o r t a t io n of a stolen vehicle. This court affirmed Frye's conviction. United S ta te s v. Frye, 489 F.3d 201 (5th Cir. 2007). Following this court's affirmance of his conviction, Frye discharged the c o u n s e l representing him during his jury trial and filed the following motions
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
*

Dockets.Justia.com

Case: 08-60741

Document: 00511170175

Page: 2

Date Filed: 07/12/2010

No. 08-60741 p r o se: a motion for a new trial and a motion requesting the district court to d ir e c t his discharged counsel to return to him his case files from his criminal p r o c e e d in g . Frye stated that he sought his case files in order to prepare a m o t io n under 28 U.S.C. § 2255 to vacate his sentence. T h e district court denied Frye's motion for a new trial and his motion to d ir e c t his discharged counsel to return his case files. Frye then filed two

s e p a r a t e motions asking the district court to reconsider its previous denials of h is motions. In his motion to reconsider the denial of his motion for the return o f his case files, Frye restated that the purpose of the motion was to prepare his § 2255 petition. In January 2009, the district court denied both of Frye's

m o t io n s for reconsideration. Frye appealed the district court's denial of both m o tio n s . In January 2009, Frye also filed a motion under § 2255 to vacate his s e n te n c e and moved to hold this motion in abeyance pending resolution of his a p p e a l before this court challenging the denial of his motion to direct his d is c h a r g e d counsel to return his case files. The district court stayed Frye's § 2 2 5 5 motion and directed the discharged counsel to preserve Frye's case files. Following the above district court actions, this court affirmed the district c o u r t's denial of Frye's motion for a new trial. See United States v. Frye, 2010 U .S . App. LEXIS 8710 (5th Cir. 2010). This court today considers Frye's appeal o f the district court's denial of his motion to direct discharged counsel to return h is case files. B e fo r e we can reach the merits of Frye's appeal, we must first consider w h e t h e r we have jurisdiction to hear this appeal. "Federal courts are courts of lim it e d jurisdiction. They possess only that power authorized by Constitution a n d statute, which is not to be expanded by judicial decree." Kokkonen v.

G u a r d ia n Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). This c o u r t may only exercise jurisdiction over final orders and certain interlocutory 2

Case: 08-60741

Document: 00511170175

Page: 3

Date Filed: 07/12/2010

No. 08-60741 o r d e r s . See 28 U.S.C. §§ 1291 (final orders), 1292 (interlocutory decisions); A s h c r o ft v. Iqbal, 129 S.Ct. 1937, 1945 (2009). Frye's motion had no relationship to his motion for new trial. Instead, the m o t io n sought discovery to assist him in his § 2255 proceeding, which was not b e fo r e the district court at the time the motion was filed. Thus, the order for d is c o v e r y at issue before this court is not a final order. The question, therefore, narrows to whether it is an appealable interlocutory order. Frye's motion does n o t fall into the limited category of interlocutory orders over which this court has ju r is d ic t io n . Frye's motion for return of his files is a motion to compel discovery t h a t could be appropriately filed in his § 2255 proceeding, and this court has r e p e a t e d ly held that discovery orders to a pending action are not subject to in t e r lo c u t o r y appeal. See Texaco, Inc. v. Louisiana Land & Exploration Co., 995 F .2 d 43, 43­44 (5th Cir. 1993) (citations omitted); Honig v. E. I. De Pont De N e m o u r s & Co., 404 F.2d 410, 410 (5th Cir. 1968). Therefore, this court lacks ju r is d ic t io n to hear this appeal. See United States v. Davis, 103 F.3d 121 (4th C ir . 1996) (unpublished).1 F o r the above reasons, we dismiss for lack of jurisdiction Frye's appeal fr o m the district court's denial of his motion to direct his discharged counsel to r e t u r n his case file.

D IS M IS S E D .

This ruling will not preclude Frye from filing an appropriate discovery motion in his § 2255 action. Frye is also not without other potential remedies. He may file a complaint against his discharged attorneys with the Mississippi State Bar, a process that he asserts in his Reply Brief he has already begun undertaking. He may also file suit against his discharged attorneys in state court. See, e.g., Edmonds v. Williamson, 13 So. 3d 1283, 1292­93 (Miss. 2009).

1

3