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LANDAVERDE v. CLELLAND (2019)

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United States Court of Appeals, Fourth Circuit.

Alfonso Mauricio LANDAVERDE, Petitioner-Appellant, v. Jack CLELLAND, Superintendent, Respondent-Appellee.

No. 19-6066

Decided: May 29, 2019

Before KING and RICHARDSON, Circuit Judges, and SHEDD, Senior Circuit Judge. Alfonso Mauricio Landaverde, Appellant Pro Se.

Alfonso Mauricio Landaverde, a North Carolina prisoner, seeks to appeal the district court's order accepting the recommendation of the magistrate judge and dismissing without prejudice his 28 U.S.C. § 2241 (2012) petition. 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, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Because the district court's order indicated that Landaverde could correct the defects of his petition by filing a new petition pursuant to 28 U.S.C. § 2254 (2012), we conclude that the order is neither a final order nor an appealable interlocutory or collateral order. See Goode v. Cent. Va. Legal Aid Soc'y, Inc., 807 F.3d 619, 623-24 (4th Cir. 2015); Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064, 1066-67 (4th Cir. 1993). Accordingly, we deny leave to proceed in forma pauperis, dismiss the appeal for lack of jurisdiction, and remand the case to the district court with instructions to allow Landaverde to amend his petition. See Goode, 807 F.3d at 630. 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Dismissed and remanded by unpublished per curiam opinion. Unpublished opinions are not binding precedent in this circuit.

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