United States v. Pace , 111 F. App'x 768 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 4, 2004
Charles R. Fulbruge III
Clerk
No. 04-10210
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RONNY L. PACE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:01-CR-22-ALL-C
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Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.
PER CURIAM:*
Ronny L. Pace appeals the district court’s order denying his
requests for both a stay of his 28 U.S.C. § 2255 proceedings and
the transcript of his grand jury proceedings. Pace contends that
the grand jury transcript is necessary for the development and
resolution of his 28 U.S.C. § 2255 proceedings, which were still
pending when he filed his notice of appeal.
The district court entered final judgment in Paces’s
28 U.S.C. § 2255 proceedings during the pendency of this appeal.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-10210
-2-
However, Pace’s premature notice of appeal precludes appellate
jurisdiction because the district court could not have certified
pursuant to FED. R. CIV. P. 54(b) the order appealed as final.
See Young v. Equifax Credit Info. Servs., 294 F.3d 631, 634 n.2
(5th Cir. 2002); FED. R. CIV. P. 54(b). Additionally, the order
appealed is not a nonfinal judgment to which the collateral order
exception applies. See 28 U.S.C. § 1292; Cohen v. Beneficial
Indus. Loan Corp., 337 U.S. 541, 546 (1949). Moreover, orders
denying discovery requests incident to a pending action are not
immediately appealable, save certain narrow exceptions
inapplicable to the instant case. See Piratello v. Philips
Elecs. N. America Corp., 360 F.3d 506, 508 (5th Cir. 2004);
Texaco, Inc. v. Louisiana Land & Exploration Co., 995 F.2d 43,
43-44 (5th Cir. 1993). We therefore lack jurisdiction to
entertain the appeal. The Government’s motion to dismiss is
GRANTED, and the appeal is DISMISSED for lack of jurisdiction.
MOTION TO DISMISS GRANTED; APPEAL DISMISSED.