USA v. James Nichol


UNPUBLISHED OPINION ORDER FILED. [15-41445 Dismissed for Lack of Jurisdiction] Judge: PEH, Judge: CH, Judge: JEG; denying as moot motion for certificate of appealability filed by Appellant Mr. James Douglas Nichols [8134500-2]; denying as moot motion to proceed IFP filed by Appellant Mr. James Douglas Nichols [8157750-2] [15-41445]

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Case: 15-41445 Document: 00513892949 Page: 1 Date Filed: 03/01/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 15-41445 United States Court of Appeals Fifth Circuit FILED March 1, 2017 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. JAMES DOUGLAS NICHOLS, Defendant-Appellant Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:13-CV-56 USDC No. 4:09-CR-222-2 Before HIGGINBOTHAM, HAYNES, and GRAVES, Circuit Judges. PER CURIAM: * James Douglas Nichols, federal prisoner # 16570-078, filed a 28 U.S.C. § 2255 motion to vacate his sentence for conspiracy to possess with intent to distribute heroin. Nichols seeks a certificate of appealability (COA) and leave to proceed in forma pauperis (IFP) to appeal the magistrate judge’s order closing his case administratively. This court must examine the basis of its jurisdiction, sua sponte, if necessary. See Mosley v. Cozby, 813 F.2d 659, 660 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Case: 15-41445 Document: 00513892949 Page: 2 Date Filed: 03/01/2017 No. 15-41445 (5th Cir. 1987). A magistrate judge has authority to hear and determine pretrial matters. See 28 U.S.C. § 636(b)(1)(A). As a general rule, an order issued by a magistrate judge is not a final order appealable to this court. See Donaldson v. Ducote, 373 F.3d 622, 624 (5th Cir. 2004); see also Colburn v. Bunge Towing, Inc., 883 F.2d 372, 379 (5th Cir. 1989) (noting that appellate courts are without jurisdiction to hear appeals directly from federal magistrate judges). Additionally, the constitution does not permit a magistrate judge to enter a final judgment in a § 2255 proceeding. United States v. Johnston, 258 F.3d 361, 372 (5th Cir. 2001). We lack jurisdiction to address this appeal. See Donaldson, 373 F.3d at 624. Accordingly, we deny Nichols’s two motions as moot. APPEAL DISMISSED; MOTIONS DENIED AS MOOT. 2

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