Opinion
No. 19-7820
06-01-2020
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TONY HUMPHREY, Defendant - Appellant.
Tony Humphrey, Appellant Pro Se.
UNPUBLISHED
Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, Chief District Judge. (3:12-cr-00228-FDW-1; 3:16-cv-00090-FDW) Before MOTZ, AGEE, and RUSHING, Circuit Judges. Dismissed by unpublished per curiam opinion. Tony Humphrey, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Tony Humphrey seeks to appeal the district court's order construing his second motion to amend his 28 U.S.C. § 2255 (2018) motion as a successive 28 U.S.C. § 2255 motion and dismissing it as unauthorized. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2018), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2018); Fed. R. Civ. P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-46 (1949).
Here, while the district court denied relief on Humphrey's § 2255 motion on June 8, 2016, it subsequently granted Humphrey's first motion to amend his § 2255 motion—which was filed prior to the order denying § 2255 relief—and reopened the action on June 20, 2016. On August 16, 2016, the district court granted the Government's uncontested motion to place Humphrey's first amended § 2255 motion in abeyance for two cases then pending before this court—United States v. Simms, 914 F.3d 229 (4th Cir.), cert denied, 140 S. Ct. 304 (2019), and United States v. Ali, No. 15-4433 (awaiting oral argument following supplemental briefing). Humphrey's first amended § 2255 motion remains pending in the district court, still in abeyance for this court's decision in Ali. Accordingly, because Humphrey's first amended § 2255 motion is still pending before the district court, the order denying his second motion to amend is neither a final order nor an appealable interlocutory or collateral order. See Bridges v. Dep't of Md. State Police, 441 F.3d 197, 206 (4th Cir. 2006) (stating that denial of motion to amend not immediately appealable). 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