Shapat Nabaya v. U.S. Attorney

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 26, 2018
• Docket: 18-6181
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-6181

SHAPAT AHDAWAN NABAYA, a/k/a Norman Abbott,

Petitioner - Appellant,

v.

U.S. ATTORNEY,

Respondent - Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Roderick Charles Young, Magistrate Judge. (3:17-cv-00731-MHL-RCY)

Submitted: June 21, 2018 Decided: June 26, 2018

Before DIAZ and HARRIS, Circuit Judges, and SHEDD, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Shapat Ahdawan Nabaya, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Shapat Ahdawan Nabaya seeks to appeal the magistrate judge’s order directing

him to file his 28 U.S.C. § 2241 (2012) petition on the proper form. After Nabaya filed

the proper form and noted his appeal, the district court dismissed his § 2241 petition

without prejudice.

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, 545-46 (1949).

When a notice of appeal is premature, the entry of final judgment can cure the resulting

jurisdictional defect under the doctrine of cumulative finality but only if the order being

appealed could have been certified for intermediate appeal under Rule 54(b). In re

Bryson, 406 F.3d 284, 287-89 (4th Cir. 2005); Equip. Fin. Grp. v. Traverse Computer

Brokers, 973 F.2d 345, 347 (4th Cir. 1992).

The order Nabaya seeks to appeal is neither a final order nor an appealable

interlocutory or collateral order. Further, because the district court could not have

certified the challenged order for immediate appeal under Rule 54(b), the cumulative

finality doctrine does not apply. Accordingly, we deny leave to proceed in forma

pauperis, deny Nabaya’s motion to compel, and 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