Charles W. Turner, Sr. v. Frank Perry

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-6086
CHARLES W. TURNER, SR.,
Petitioner – Appellant,
v.
FRANK PERRY,
Respondent - Appellee.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. L. Patrick Auld,
Magistrate Judge. (1:15-cv-00361-LCB-LPA)
Submitted: May 26, 2016 Decided: June 1, 2016
Before TRAXLER, Chief Judge, and NIEMEYER and FLOYD, Circuit
Judges.
Dismissed by unpublished per curiam opinion.
Charles W. Turner, Sr., Appellant Pro Se. Clarence Joe DelForge,
III, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

-- 1 of 4 --

2
PER CURIAM:
Charles Turner, Sr., seeks to appeal the magistrate judge’s
report recommending that the district court deny Turner’s 28
U.S.C. § 2254 (2012) petition. The district court referred
Turner’s case to a magistrate judge pursuant to 28 U.S.C.
§ 636(b)(1)(B) (2012). The magistrate judge recommended the
court deny the petition and advised Turner that failure to file
timely objections to this recommendation would waive appellate
review of a district court order based upon the recommendation.
On the same day that he filed timely objections, Turner noted an
appeal of the recommendation. The district court thereafter
accepted the magistrate judge’s recommendation; however, Turner
failed to file an amended notice of appeal or supplemental
informal brief.
We may exercise jurisdiction only over final decisions, 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). “Absent both designation by the district court and
consent of the parties” pursuant to 28 U.S.C. § 636(c) (2012), a
magistrate judge’s report and recommendation is neither a final
order nor an appealable interlocutory or collateral order.
Haney v. Addison, 175 F.3d 1217, 1219 (10th Cir. 1999); see
Aluminum Co. of Am. v. U.S. Envtl. Prot. Agency, 663 F.2d 499,

-- 2 of 4 --

3
501-02 (4th Cir. 1981) (holding that, when a district court
specifically refers a dispositive matter to a magistrate judge
under § 636(b)(1)(B), the district court is obligated to conduct
a de novo determination of the magistrate judge’s order).
When a notice of appeal is premature, the jurisdictional
defect can be cured under the doctrine of cumulative finality if
the district court enters a final judgment prior to our
consideration of the appeal. Equip. Fin. Group, Inc. v.
Traverse Comput. Brokers, 973 F.2d 345, 347-48 (4th Cir. 1992).
However, not all premature notices of appeal are subject to the
cumulative finality rule; instead, this doctrine applies only if
the appellant appeals from an order that the district court
could have certified for immediate appeal under Fed. R. Civ. P.
54(b). In re Bryson, 406 F.3d 284, 287-89 (4th Cir. 2005). A
district court may certify an order for immediate appeal under
Rule 54(b) if the order is “‘an ultimate disposition of an
individual claim entered in the course of a multiple claims
action.’” Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 7
(1980) (quoting Sears, Roebuck & Co. v. Mackey, 351 U.S. 427,
436 (1956)).
“[A] premature notice of appeal from a clearly
interlocutory decision” cannot be saved under the doctrine of
cumulative finality. Bryson, 406 F.3d at 288 (internal
quotation marks omitted); see also FirsTier Mortg. Co. v. Inv’rs

-- 3 of 4 --

4
Mortg. Ins. Co., 498 U.S. 269, 276 (1991) (notice of appeal from
a clearly interlocutory decision cannot serve as a notice of
appeal from final judgment). Because the magistrate judge’s
recommendation was interlocutory and could not have been
certified under Rule 54(b), the doctrine of cumulative finality
does not apply here. Thus, we dismiss Turner’s appeal of the
magistrate judge’s report and recommendation for lack of
jurisdiction. We deny Turner’s motions for appointment of
counsel and suspension of his sentence. 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

-- 4 of 4 --