     Case: 08-60741     Document: 00511170175          Page: 1    Date Filed: 07/12/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            July 12, 2010

                                       No. 08-60741                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee
v.

JAMES EDWARD FRYE, also known as Sealed Defendant 2,

                                                   Defendant-Appellant




               Appeal from the United States District Court for the
                         Southern District of Mississippi
                             USDC No. 4:01-CR-8-2


Before DAVIS, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
        On February 3, 2005, a jury convicted federal prisoner James Edward
Frye, of one count each of conspiracy, carjacking resulting in death, use of a
firearm during and in relation to a crime of violence, and interstate
transportation of a stolen vehicle. This court affirmed Frye’s conviction. United
States v. Frye, 489 F.3d 201 (5th Cir. 2007).
        Following this court’s affirmance of his conviction, Frye discharged the
counsel representing him during his jury trial and filed the following motions

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                  No. 08-60741

pro se: a motion for a new trial and a motion requesting the district court to
direct his discharged counsel to return to him his case files from his criminal
proceeding. Frye stated that he sought his case files in order to prepare a
motion under 28 U.S.C. § 2255 to vacate his sentence.
      The district court denied Frye’s motion for a new trial and his motion to
direct his discharged counsel to return his case files.      Frye then filed two
separate motions asking the district court to reconsider its previous denials of
his motions. In his motion to reconsider the denial of his motion for the return
of his case files, Frye restated that the purpose of the motion was to prepare his
§ 2255 petition.    In January 2009, the district court denied both of Frye’s
motions for reconsideration. Frye appealed the district court’s denial of both
motions.
      In January 2009, Frye also filed a motion under § 2255 to vacate his
sentence and moved to hold this motion in abeyance pending resolution of his
appeal before this court challenging the denial of his motion to direct his
discharged counsel to return his case files. The district court stayed Frye’s §
2255 motion and directed the discharged counsel to preserve Frye’s case files.
      Following the above district court actions, this court affirmed the district
court’s denial of Frye’s motion for a new trial. See United States v. Frye, 2010
U.S. App. LEXIS 8710 (5th Cir. 2010). This court today considers Frye’s appeal
of the district court’s denial of his motion to direct discharged counsel to return
his case files.
      Before we can reach the merits of Frye’s appeal, we must first consider
whether we have jurisdiction to hear this appeal. “Federal courts are courts of
limited jurisdiction. They possess only that power authorized by Constitution
and statute, which is not to be expanded by judicial decree.”        Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). This
court may only exercise jurisdiction over final orders and certain interlocutory

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                                       No. 08-60741

orders. See 28 U.S.C. §§ 1291 (final orders), 1292 (interlocutory decisions);
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1945 (2009).
       Frye’s motion had no relationship to his motion for new trial. Instead, the
motion sought discovery to assist him in his § 2255 proceeding, which was not
before the district court at the time the motion was filed. Thus, the order for
discovery at issue before this court is not a final order. The question, therefore,
narrows to whether it is an appealable interlocutory order. Frye’s motion does
not fall into the limited category of interlocutory orders over which this court has
jurisdiction. Frye’s motion for return of his files is a motion to compel discovery
that could be appropriately filed in his § 2255 proceeding, and this court has
repeatedly held that discovery orders to a pending action are not subject to
interlocutory appeal. See Texaco, Inc. v. Louisiana Land & Exploration Co., 995
F.2d 43, 43–44 (5th Cir. 1993) (citations omitted); Honig v. E. I. De Pont De
Nemours & Co., 404 F.2d 410, 410 (5th Cir. 1968). Therefore, this court lacks
jurisdiction to hear this appeal. See United States v. Davis, 103 F.3d 121 (4th
Cir. 1996) (unpublished).1
       For the above reasons, we dismiss for lack of jurisdiction Frye’s appeal
from the district court’s denial of his motion to direct his discharged counsel to
return his case file.


       DISMISSED.




       1
        This ruling will not preclude Frye from filing an appropriate discovery motion in his
§ 2255 action. Frye is also not without other potential remedies. He may file a complaint
against his discharged attorneys with the Mississippi State Bar, a process that he asserts in
his Reply Brief he has already begun undertaking. He may also file suit against his
discharged attorneys in state court. See, e.g., Edmonds v. Williamson, 13 So. 3d 1283, 1292–93
(Miss. 2009).

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