Filed: Mar. 27, 2015
Latest Update: Mar. 27, 2015
Summary: ORDER GREGORY G. HOLLOWS , Magistrate Judge . Petitioner, a state prisoner proceeding pro se, is proceeding with an application for a writ of habeas corpus pursuant to 28 U.S.C. 2254. Findings and recommendations were filed on February 10, 2015, objections were filed on March 23, 2015, and the time for a reply has not yet passed. ( See ECF No. 36.) On March 23, 2015, petitioner also filed a notice of appeal and a motion for certificate of appealability. These filings are premature as the
Summary: ORDER GREGORY G. HOLLOWS , Magistrate Judge . Petitioner, a state prisoner proceeding pro se, is proceeding with an application for a writ of habeas corpus pursuant to 28 U.S.C. 2254. Findings and recommendations were filed on February 10, 2015, objections were filed on March 23, 2015, and the time for a reply has not yet passed. ( See ECF No. 36.) On March 23, 2015, petitioner also filed a notice of appeal and a motion for certificate of appealability. These filings are premature as ther..
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ORDER
GREGORY G. HOLLOWS, Magistrate Judge.
Petitioner, a state prisoner proceeding pro se, is proceeding with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Findings and recommendations were filed on February 10, 2015, objections were filed on March 23, 2015, and the time for a reply has not yet passed. (See ECF No. 36.) On March 23, 2015, petitioner also filed a notice of appeal and a motion for certificate of appealability. These filings are premature as there is no final judgment, much less a final order, in this case. See Burnside v. Jacquez, 731 F.3d 874, 875 (9th Cir. 2013) (FRAP 4(a)(2) does not save a premature notice of appeal when appeal is made after findings and recommendations, but before a final order). After the time for filing a reply has passed, the matter will remain pending before the district court, which will then issue an order addressing the findings and recommendations, and judgment will be entered at that time. Petitioner will then have thirty days to file a notice of appeal if one is appropriate. See Fed. R. App. Proc. 4(a).
Accordingly, IT IS HEREBY ORDERED that:
1. Petitioner's notice of appeal (ECF No. 39) is stricken as premature; and
2. Petitioner's motion for certificate of appealability (ECF No. 40) is denied as premature.
