                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 16-6086


CHARLES W. TURNER, SR.,

                      Petitioner – Appellant,

          v.

FRANK PERRY,

                      Respondent - Appellee.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.  L. Patrick Auld,
Magistrate Judge. (1:15-cv-00361-LCB-LPA)


Submitted:   May 26, 2016                      Decided:   June 1, 2016


Before TRAXLER, Chief Judge, and NIEMEYER and FLOYD, Circuit
Judges.


Dismissed by unpublished per curiam opinion.


Charles W. Turner, Sr., Appellant Pro Se. Clarence Joe DelForge,
III, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Charles Turner, Sr., seeks to appeal the magistrate judge’s

report recommending that the district court deny Turner’s 28

U.S.C.    § 2254       (2012)      petition.         The    district      court       referred

Turner’s       case    to    a    magistrate        judge    pursuant         to    28    U.S.C.

§ 636(b)(1)(B)         (2012).         The    magistrate      judge      recommended         the

court deny the petition and advised Turner that failure to file

timely objections to this recommendation would waive appellate

review of a district court order based upon the recommendation.

On the same day that he filed timely objections, Turner noted an

appeal of the recommendation.                       The district court thereafter

accepted the magistrate judge’s recommendation; however, Turner

failed    to    file    an       amended     notice    of    appeal      or    supplemental

informal brief.

     We may exercise jurisdiction only over final decisions, 28

U.S.C. § 1291 (2012), and certain interlocutory and collateral

orders.        28     U.S.C.      §   1292    (2012);       Fed.    R.   Civ.       P.    54(b);

Cohen v.    Beneficial           Indus.      Loan   Corp.,     337    U.S.         541,   545-46

(1949).        “Absent      both      designation      by    the    district         court   and

consent of the parties” pursuant to 28 U.S.C. § 636(c) (2012), a

magistrate judge’s report and recommendation is neither a final

order    nor     an    appealable         interlocutory        or    collateral           order.

Haney v. Addison, 175 F.3d 1217, 1219 (10th Cir. 1999); see

Aluminum Co. of Am. v. U.S. Envtl. Prot. Agency, 663 F.2d 499,

                                               2
501-02    (4th    Cir.     1981)     (holding        that,     when    a    district        court

specifically refers a dispositive matter to a magistrate judge

under § 636(b)(1)(B), the district court is obligated to conduct

a de novo determination of the magistrate judge’s order).

       When a notice of appeal is premature, the jurisdictional

defect can be cured under the doctrine of cumulative finality if

the    district       court      enters    a        final    judgment       prior      to     our

consideration         of   the     appeal.           Equip.     Fin.       Group,     Inc.     v.

Traverse Comput. Brokers, 973 F.2d 345, 347-48 (4th Cir. 1992).

However, not all premature notices of appeal are subject to the

cumulative finality rule; instead, this doctrine applies only if

the    appellant      appeals     from     an       order   that     the    district        court

could have certified for immediate appeal under Fed. R. Civ. P.

54(b).    In re Bryson, 406 F.3d 284, 287-89 (4th Cir. 2005).                                   A

district court may certify an order for immediate appeal under

Rule    54(b)    if    the    order   is     “‘an      ultimate       disposition        of    an

individual       claim     entered    in    the       course    of    a    multiple      claims

action.’”       Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 7

(1980) (quoting Sears, Roebuck & Co. v. Mackey, 351 U.S. 427,

436 (1956)).

       “[A]      premature        notice        of         appeal      from       a     clearly

interlocutory decision” cannot be saved under the doctrine of

cumulative       finality.           Bryson,         406     F.3d     at    288       (internal

quotation marks omitted); see also FirsTier Mortg. Co. v. Inv’rs

                                                3
Mortg. Ins. Co., 498 U.S. 269, 276 (1991) (notice of appeal from

a clearly interlocutory decision cannot serve as a notice of

appeal from final judgment).           Because the magistrate judge’s

recommendation   was   interlocutory      and   could     not     have     been

certified under Rule 54(b), the doctrine of cumulative finality

does not apply here.      Thus, we dismiss Turner’s appeal of the

magistrate   judge’s   report    and     recommendation     for     lack    of

jurisdiction.    We    deny   Turner’s    motions   for   appointment        of

counsel and suspension of his sentence.         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




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