*

This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th

Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

March 24, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 09-5117

v. (N.D. Oklahoma)

MARRICCO ALONZO SYKES,

Defendant - Appellant.

(D.C. No. 97-CR-00178-GKF-2)

ORDER AND JUDGMENT*

Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Defendant and appellant Marricco Alonzo Sykes seeks to appeal the district

court’s denial of his discovery motion, filed during the course of his untimely 28

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U.S.C. § 2255 motion. Because we lack jurisdiction over the appeal of an

interlocutory, non-final discovery ruling, we dismiss this matter.

In 1997, a five-count indictment charged Mr. Sykes and other individuals

with a conspiracy to commit armed robberies. Mr. Sykes pled guilty to two

violations of 18 U.S.C. § 924(c) and, on May 21, 1998, the district court

sentenced him to 220 months imprisonment. Mr. Sykes did not directly appeal his

conviction or sentence.

In 2009, Mr. Sykes filed a § 2255 motion seeking to vacate his sentence. 

During the § 2255 proceeding, Mr. Sykes filed a motion asking the district court

to “unseal, create copies and provide him the portions of his past ‘Criminal Case’

records,” including “each and every single [one] of the court transcripts that were

used against him.” R. Vol. 1, Doc. 103. His motion also requested that the court

“expedite unsealing and delivery” of the sought documents, which the district

court clerk’s office construed as a separate motion to expedite the ruling. Id.

Through a minute order, the district court denied Mr. Sykes’s motion. This

appeal followed from that denial.

In the meantime, the government had moved to dismiss Mr. Sykes’ § 2255

motion as untimely filed. The district court ordered Mr. Sykes to respond to the

government’s motion, which he failed to do. Accordingly, in September 22,

2009, the district court dismissed Mr. Sykes’ § 2255 motion because it was filed

beyond the one-year limitation period set forth in 28 U.S.C. § 2255(f)(1). On

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1

It is unclear whether the district court’s minute order denied the motion to

unseal and deliver documents, the motion to expedite, or both. We assume it

denied both.

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November 20, 2009, Mr. Sykes moved for leave to appeal out of time the

dismissal of his § 2255 motion. The district court denied him leave to appeal out

of time. As indicated, this appeal is from the district court’s denial of Mr. Sykes

motion to unseal and deliver certain documents, as well as the denial of

Mr. Sykes’ motion to expedite.1

We ordinarily review “a district court’s discovery rulings . . . for abuse of

discretion.” Regan-Touhy v. Walgreen Co., 526 F.3d 641, 647 (10th Cir. 2008). 

However, we must always satisfy ourselves that we have jurisdiction over an

appeal before addressing its merits. See Ellenberg v. New Mexico Military

Institute, 478 F.3d 1262, 1275 n.11 (10th Cir. 2007). The discovery orders from

which Mr. Sykes attempts to appeal are not final appealable orders under 28

U.S.C. § 1291. See Graham v. Gray, 827 F.2d 679, 681 (10th Cir. 1987). Nor do

they qualify as appealable interlocutory orders, because they had no “final or

irreparable effect on the rights of the parties.” Anthony v. United States, 667

F.2d 870, 878 (10th Cir. 1981) (quoting Cohen v. Beneficial Loan Corp., 337 U.S.

541, 545 (1949)). We are therefore without jurisdiction and we dismiss this

matter. We also deny Mr. Sykes’ motions to strike the appellee’s brief, as well as

his motion to proceed in forma pauperis.

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For the foregoing reasons, this matter is DISMISSED.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge

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