                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-6868



EMORY MITCHELL,

                                           Petitioner - Appellant,

          versus


RICHARD   SMITH,   Warden;  HENRY   MCMASTER,
Attorney General of South Carolina,

                                          Respondents - Appellees.



Appeal from the United States District Court for the District of
South Carolina, at Beaufort.    Henry M. Herlong, Jr., District
Judge. (CA-03-2529-9-20BG)


Submitted:   December 9, 20004         Decided:     December 15, 2004


Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Emory Mitchell, Appellant Pro Se. Donald John Zelenka, Chief Deputy
Attorney General, John William McIntosh, Assistant Attorney
General, Samuel Creighton Waters, OFFICE OF THE ATTORNEY GENERAL OF
SOUTH CAROLINA, for Appellees.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

           Emory Mitchell seeks to appeal the district court’s

April 8, 2004, order, denying his 28 U.S.C. § 2254 (2000) petition,

because he failed to object to the magistrate judge’s report and

recommendation.       Because Mitchell informed the court that he did

not receive the magistrate judge’s report and recommendation, the

district court granted Mitchell’s Fed. R. Civ. P. 60(b) motion,

vacated its April 8th order, and reissued the recommendation so

that Mitchell could object.         Thus, there has been no final order

entered in the case.       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 order Mitchell seeks to appeal is neither a final

order   nor     an   appealable    interlocutory      or   collateral   order.

Accordingly, we deny a certificate of appealability and 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.



                                                                      DISMISSED




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