Opinion
No. 16-6099
06-01-2016
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LARRY DON BROWN, Defendant - Appellant.
Larry Don Brown, Appellant Pro Se. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee.
UNPUBLISHED Appeal from the United States District Court for the Western District of North Carolina, at Statesville.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) 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 Dismissed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. 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. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-47 (1949). 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.
Accordingly, we dismiss the appeal for lack of jurisdiction. 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
In re Williams, 444 F.3d 233, 236 (4th Cir. 2006).