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HERTO v. MURPHY (2020)

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United States Court of Appeals, Fourth Circuit.

Stephen D. HERTO, Petitioner - Appellant, v. John T. MURPHY, Acting Warden, Respondent - Appellee.

No. 19-7752

Decided: March 17, 2020

Before KING, KEENAN, and FLOYD, Circuit Judges. Stephen D. Herto, Appellant Pro Se. Lindsay Sara See, OFFICE OF THE ATTORNEY GENERAL, Charleston, West Virginia, for Appellee.

Stephen D. Herto seeks to appeal the district court's order denying his motion for an evidentiary hearing on his 28 U.S.C. § 2254 (2018) petition and giving him an opportunity to abandon the claims the district court found unexhausted or to stay the action pending exhaustion in state court. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2018), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2018); 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). The order Herto seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. Accordingly, we deny leave to proceed in forma pauperis, dismiss the appeal for lack of jurisdiction, and deny Herto's motion to stay district court proceedings pending appeal. 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Dismissed by unpublished per curiam opinion. Unpublished opinions are not binding precedent in this circuit.

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