# United States v. Larry Brown

> Court of Appeals for the Fourth Circuit · June 1, 2016 · 651 F. App'x 182

URL: https://www.frixlaw.com/law-library/cases/3208423

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Larry Don BROWN, Defendant-Appellant
- **Court:** Court of Appeals for the Fourth Circuit
- **Decided:** June 1, 2016
- **Citations:** 651 F. App'x 182
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Traxler, Niemeyer, Floyd
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-6099

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

LARRY DON BROWN,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:13-cr-00053-RLV-DCK-11;
5:15-cv-00118-RLV)

Submitted: May 26, 2016 Decided: June 1, 2016

Before TRAXLER, Chief Judge, and NIEMEYER and FLOYD, Circuit
Judges.

Dismissed by unpublished per curiam opinion.

Larry Don Brown, Appellant Pro Se. Amy Elizabeth Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Larry Don Brown seeks to appeal the district court’s order

dismissing without prejudice in part his 28 U.S.C. § 2255 (2012)

motion. 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,

545-47 (1949). Because the district court’s order makes clear

that Brown may raise the dismissed claims in a new § 2255 motion

upon the conclusion of his direct appeal, * we conclude that the

order Brown seeks to appeal is neither a final order nor an

appealable interlocutory or collateral order. Domino Sugar

Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064, 1066-67

(4th Cir. 1993).

* Brown appears to appeal the district court’s determination
out of concern that he will be barred from filing a later § 2255
motion. However:

If a habeas petitioner (state or federal) files an
application for collateral relief that raises a
successful appeal claim and additional claims, any
subsequent petition will be considered ‘second or
successive’ [only] if (a) the district court ruled on
the merits of the additional claims in the initial
petition, and (b) the petitioner seeks to raise those
claims again in the subsequent petition.

In re Williams, 444 F.3d 233, 236 (4th Cir. 2006).

2
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 this court and argument would not aid the decisional

process.

DISMISSED

3

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3208423. Public record. Not legal advice.