United States of America v. Tony Humphrey

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 19-7820

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

TONY HUMPHREY,

Defendant - Appellant.

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)

Submitted: May 21, 2020 Decided: June 1, 2020

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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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

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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