UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4336
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CORNELIUS TUCKER, JR.,
Defendant - Appellant.
No. 05-7021
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CORNELIUS TUCKER, JR.,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (CR-02-235; CA-04-708-BO)
Submitted: September 28, 2005 Decided: November 3, 2005
Before LUTTIG and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
No. 05-4336 affirmed in part and dismissed in part; No. 05-7021
dismissed by unpublished per curiam opinion.
James B. Craven III, Durham, North Carolina, for Appellant (No. 05-
4336); Cornelius Tucker, Jr., Appellant Pro Se (No. 05-7021).
Frank DeArmon Whitney, United States Attorney, Anne Margaret Hayes,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Cornelius Tucker, Jr., charged with twelve counts of
sending threatening communications through the U.S. Postal Service,
in violation of 18 U.S.C.A. § 876 (West 2000 & Supp. 2005), was
found not guilty only by reason of insanity. See 18 U.S.C.
§ 4242(b)(3) (2000). The district court entered an order setting
forth that verdict. The order also directed that, as Tucker is
currently confined in state custody, the procedures for determining
whether he should be confined for treatment rather than released,
under 18 U.S.C. §§ 4243, 4247 (2000), shall be delayed until
Tucker’s release from state custody. Tucker noted an appeal in No.
05-4336.
Counsel for Tucker filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that there were no
meritorious grounds for appeal. Tucker has filed pro se
supplemental material. To the extent that Tucker seeks to appeal
the verdict of not guilty by reason of insanity, he may not attack
his successful assertion of this affirmative defense. See 18
U.S.C. § 17(a) (2000) (setting forth insanity as an affirmative
defense); United States v. Wattleton, 296 F.3d 1184, 1194-95 (11th
Cir. 2002) (rejecting appeal of successful not guilty by reason of
insanity defense); Curry v. Overholser, 287 F.2d 137, 139-40 (D.C.
Cir. 1960) (same).
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There is not yet a final, appealable decision on whether
Tucker should be committed to the custody of the Attorney General
under 18 U.S.C. § 4243. However, Tucker seeks to challenge the
district court’s decision to delay the hearing mandated under that
provision. We conclude that to delay review of that issue until
the hearing is held after Tucker’s release from state custody would
make the issue unreviewable. Therefore, we find we have
jurisdiction to review the question now under the collateral order
doctrine. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 468
(1978) (describing a collateral order as one that “must
conclusively determine the disputed question, resolve an important
issue completely separate from the merits of the action, and be
effectively unreviewable on appeal from a final judgment”). We
hold that the district court did not err in ordering the delay.
See United States v. Kenney, 152 F. Supp. 2d 631 (M.D. Pa. 2001)
(ordering delay of 18 U.S.C. § 4243(c) hearing where defendant in
custody on other charges); United States v. Bohe, __ F. Supp. 2d
__, 2005 WL 1026701 (D.N.D. Apr. 28, 2005) (rejecting defendant’s
request for release on the ground that the time constraints of 18
U.S.C. §§ 4243(c), 4247(b), were not followed). Therefore, we
affirm the district court’s decision to delay the hearing.
Tucker filed a 28 U.S.C. § 2255 (2000) motion while the
criminal proceedings were ongoing in the district court. He seeks
to appeal the district court’s denial of that motion in No. 05-
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7021. Section 2255 is a vehicle for attacking a federal conviction
and sentence. Here, Tucker received no sentence and was in fact
found not guilty, albeit only by reason of insanity. Therefore, we
deny a certificate of appealability and dismiss his appeal from the
district court’s order dismissing the petition.
In No. 05-4336, we deny all of Tucker’s pending motions,
including his motion to relieve and substitute counsel, motion for
counsel’s dismissal on the merits, motion for oral argument, motion
to show cause, motion to strike statements, motion to request
mediation out of time, motion for a competency hearing, motion for
transcript, motion for psychiatric exam, and motion to expedite
appeal. In accordance with the requirements of Anders, we have
reviewed the entire record in this case and have found no
meritorious issues for appeal. The court requires that counsel
inform his client, in writing, of his right to petition the Supreme
Court of the United States for further review. If the client
requests that a petition be filed, but counsel believes that such
a petition would be frivolous, then counsel may move in this court
for leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on the client. We dismiss the
appeal in part and affirm in part.
In No. 05-7021, we deny a certificate of appealability
and dismiss the appeal. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the
decisional process.
No. 05-4336 AFFIRMED IN PART AND DISMISSED IN PART
No. 05-7021 DISMISSED
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