UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-7851

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ELLIS DEWAYNE BILLINGSLEY,

Defendant - Appellant.

No. 04-7956

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ELLIS DEWAYNE BILLINGSLEY,

Defendant - Appellant.

Appeals from the United States District Court for the Middle

District of North Carolina, at Greensboro. N. Carlton Tilley, Jr.,

Chief District Judge. (CR-98-47; CA-04-445)

Submitted: April 28, 2005 Decided: May 4, 2005

Before WILLIAMS, KING, and DUNCAN, Circuit Judges.
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Dismissed by unpublished per curiam opinion.

Ellis Dewayne Billingsley, Appellant Pro Se. Walter C. Hohn,

OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina,

for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

In appeal No. 04-7851, Ellis Dewayne Billingsley appeals

the magistrate judge’s order construing his motion for a sentence

reduction under 18 U.S.C. § 3553 (2000), as an improperly filed 28

U.S.C. § 2255 (2000) motion, and dismissing the action without

prejudice to his right to refile a proper § 2255 motion. See

United States v. Billingsley, No. CR-98-47 (E.D.N.C. Nov. 15,

2004). 

This court may exercise jurisdiction only over final

orders, 28 U.S.C. § 1291 (2000), and certain interlocutory and

collateral orders, 28 U.S.C. § 1292 (2000); Fed. R. Civ. P. 54(b);

Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949). The

magistrate judge’s order is neither a final order nor an appealable

interlocutory or collateral order. United States v. Bryson, 981

F.2d 720, 723 (4th Cir. 1992) (magistrate judge may hear matters in

§ 2255 proceedings, but may not decide them absent explicit

consent). Moreover, where a dispositive matter is referred to the

magistrate judge under 28 U.S.C.A. § 636(b) (West Supp. 2004),

parties must have the opportunity to object, and the district court

is required to conduct de novo review of the portions of the

recommendation to which objections are made. Bryson, 981 F.2d at

723. Accordingly, we dismiss the appeal for lack of jurisdiction.

In appeal No. 04-7956, Billingsley appeals the district

court’s order accepting the recommendation of the magistrate judge
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to dismiss, without prejudice, his motion for a sentence reduction

as an improperly filed 28 U.S.C. § 2255 (2000) motion. The

district court dismissed the action without prejudice to petitioner

filing a corrected motion on the proper § 2255 forms. See United

States v. Billingsley, No. CA-04-445 (E.D.N.C. Oct. 1, 2004).

Instead of heeding the court’s advice, Billingsley appealed.

Because the dismissal order is without prejudice, and Billingsley

may file an amended complaint in the district court by submitting

it on the proper forms, we conclude that this order is

interlocutory and thus, not appealable. Domino Sugar Corp. v.

Sugar Workers Local Union 392, 10 F.3d 1064, 1066-67 (4th Cir.

1993) (holding that a dismissal without prejudice is a final order

only if “no amendment [to the complaint] could cure the defects in

the plaintiff’s case.”) (internal quotation marks and citation

omitted)). Accordingly, we dismiss the appeal for lack of

jurisdiction. 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.

No. 04-7851 - DISMISSED

No. 04-7956 - DISMISSED