Ronald R. SMITHERMAN, Petitioner-Appellant, v. Ronald J. ANGELONE, Director of the Virginia Department of Corrections, Respondent-Appellee, 33 F. App'x 699

PER CURIAM. Ronald R. Smitherman filed an action under 28 U.S.C.A. § 2254 (West 1994 & Supp.2001), challenging his state court convictions. During the course of the § 2254 proceedings, Smitherman moved to enjoin prison officials from opening legal mail he received in connection with the § 2254 action. The magistrate judge denied the motion, and Smitherman appeals. We dismiss the appeal for lack of jurisdiction because the order is not appeal-able.

This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (1994), and certain interlocutory and collateral orders. 28 U.S.C. § 1292 (1994); Fed.R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The order here appealed is neither a final order nor an appealable interlocutory or collateral order. Accordingly, we deny a certificate of appealability and dismiss the appeal as interlocutory.

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. Although this motion was docketed in the § 2254 action, we note that it is more appropriately construed as a separate action under 42 U.S.C.A. § 1983 (West Supp.2001).