UNITED STATES v. TERRELL (2019)

Kamel O'Meek Terrell seeks to appeal the district court's order adopting the magistrate judge's recommendation and dismissing his 28 U.S.C. § 2255 (2012) motion without prejudice. This Court may exercise jurisdiction only over final orders and certain interlocutory and collateral orders. 28 U.S.C. §§ 1291, 1292 (2012); Fed. R. Civ. P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-46, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Because the district court dismissed without prejudice specifically directing Terrell to file an amended motion on the proper § 2255 forms, we conclude the district court's dismissal order is neither a final judgment nor an appealable interlocutory or collateral order. See Goode v. Cent. Va. Legal Aid Soc'y, Inc., 807 F.3d 619, 623 (4th Cir. 2015). Accordingly, we dismiss the appeal for lack of jurisdiction.

In Goode, we remanded to the district court with instructions to allow amendment of the complaint. Id. at 630. Here, however, the district court already has afforded Terrell the opportunity to amend. Accordingly, we direct on remand that the district court, in its discretion, either afford Terrell another opportunity to file an amended motion or dismiss the motion with prejudice, thereby rendering its dismissal order a final, appealable judgment. 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 AND REMANDED

PER CURIAM:

Dismissed and remanded by unpublished per curiam opinion. Unpublished opinions are not binding precedent in this circuit.