Walkup v. Haines

169 F. App'x 776

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 3, 2006
• Docket: 05-7627
• Status: Unpublished

Opinion

PER CURIAM:

Harry E. Walkup, Jr., filed a 28 U.S.C. § 2254 (2000) petition challenging his West Virginia state court convictions. He seeks to appeal the district court’s order adopting the magistrate judge’s recommendation and denying Walkup’s motion to excuse exhaustion of state court remedies, granting Respondent’s motion to dismiss with respect to Walkup’s motion to excuse exhaustion, and giving Walkup twenty days to file an amended § 2254 petition containing only exhausted claims or to withdraw his § 2254 petition in its entirety. * This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2000), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2000); Fed. R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The order Walkup seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. 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 the court and argument would not aid the decisional process.

DISMISSED

* The district court entered its order on September 30, 2005. Walkup has neither filed an amended § 2254 petition nor withdrawn his § 2254 petition, and no final order has been issued.