Summary
finding that because the district court did not rule on and ordered further briefing on one of petitioner's habeas claims, the judgment denying his other claims was not a final order, and appellate jurisdiction did not exist
Summary of this case from Doughty v. LouisianaOpinion
No. 06-60302 Summary Calendar.
May 30, 2007.
Charles Wiley Spillers, Assistant U.S. Attorney, U.S. Attorney's Office Northern District of Mississippi, Oxford, MS, for Plaintiff-Appellee.
James Allen Morris, Glenville, WV, pro se.
Appeal from the United States District Court for the Northern District of Mississippi, USDC Nos. 2:02-CR-74-1, 3:04-CV-72.
Before SMITH, WIENER and OWEN, Circuit Judges.
James Allen Morris, federal prisoner # 11614-042, was convicted following a guilty plea to possession with intent to distribute in excess of five grams of a mixture and substance containing cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B), and being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2). He was sentenced to concurrent terms of 230 months and 120 months of imprisonment. He filed a 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. The district court dismissed Morris's claims, but preserved for further briefing Morris's claim regarding the drug quantity used to determine his sentence. The record does not indicate that the district court has ruled upon the drug quantity issue. Morris now seeks a certificate of appealability (COA) to appeal the district court's partial dismissal of his § 2255 claims.
In general, courts of appeals have jurisdiction of appeals from all final decisions of the district courts. 28 U.S.C. § 1291. Similarly, in a § 2255 proceeding, "the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held" and a COA is to be issued from a "final order." 28 U.S.C. § 2253(a) and (c)(1). Moreover, the district court is required to "deny a COA as to each issue presented by the applicant." Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1998) (§ 2254 proceeding).
Given that the district court did not rule on and ordered further briefing on Morris's drug quantity claim, the judgment denying Morris's other § 2255 claims was not a final order and appellate jurisdiction does not exist. See Young v. Herring, 777 F.2d 198, 202 (5th Cir. 1985). Accordingly, Morris's motion for COA is denied, and the appeal is dismissed for lack of jurisdiction. Morris's motion for leave to proceed IFP is also denied.
MOTIONS DENIED; APPEAL DISMISSED.