Cordell Oscar Jackson, Petitioner Appellant, v. Sewall B. Smith, Warden; State of Maryland, Respondents Appellees, 21 F.3d 422 (4th Cir. 1994)

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U.S. Court of Appeals for the Fourth Circuit - 21 F.3d 422 (4th Cir. 1994) Submitted March 17, 1994. Decided April 6, 1994

Appeals from the United States District Court for the District of Maryland, at Baltimore. Benson E. Legg, District Judge; Clarence E. Goetz, Chief Magistrate Judge. (CA-93-338-L)

Cordell Oscar Jackson, appellant pro se.

John Joseph Curran, Jr., Atty. Gen., Gwynn X. Kinsey, Jr., Asst. Atty. Gen., Baltimore, MD, for appellees.

D. Md.


Before PHILLIPS and LUTTIG, Circuit Judges, and BUTZNER, Senior Circuit Judge.


Appellant seeks to appeal both the magistrate judge's report and recommendation recommending denial of relief on his 28 U.S.C. § 2254 (1988) petition (No. 94-6168), and the district court's final order denying such relief (No. 94-6098).

Because the report and recommendation is neither a final order nor an appealable interlocutory or collateral order, we deny a certificate of probable cause to appeal and dismiss the appeal in No. 94-6168 as interlocutory.*  28 U.S.C. §§ 1291, 1292 (1988); Fed. R. Civ. P. 54(b); Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949).

Our review of the record and the district court's opinion adopting the recommendation of the magistrate judge discloses that the appeal from the final order is without merit. Accordingly, we deny a certificate of probable cause to appeal in No. 94-6098 and dismiss that appeal on the reasoning of the district court. Jackson v. Smith, No. CA-93-338-L (D. Md. Jan. 10, 1994).

We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.



We also note that Appellant's notice of appeal in No. 94-6168 was untimely under Fed. R. App. P. 4(a) (1)