Urbano v. MacDonald et al

Filing 36

ORDER signed by District Judge Troy L. Nunley on 11/14/2014 ORDERING 33 The Court will NOT issue a Certificate of Appealability in this action. The order from which Petitioner appeals did not dispose of all of his claims and did not deny or grant relief. (Reader, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTHONY DAVID URBANO,

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No. 2:13-cv-1182 TLN GGH P

Petitioner,
v.

ORDER

JEFFREY BEARD,
Respondent.

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Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. On March 7, 2014, an order was entered in this Court dismissing

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claims two through six and directing that the action proceed on claim one only. On March 31,

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2014, Petitioner filed a Rule 60(b) motion. In an order filed September 9, 2014, the Court

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construed this filing as a motion for reconsideration of its March 7, 2014 order, and affirmed its

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prior order. On October 14, 2014, Petitioner filed a notice of appeal and motion for certificate of

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appealability. (ECF Nos. 32, 33.) Under the provisions of 28 U.S.C. § 2253, Petitioner must be

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granted a certificate of appealability in order to proceed with the appeal. Fed. R. App. P. 22(b).

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Section 2253 also provides that an appeal in a habeas corpus proceeding may only be taken from

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a “final order.” 28 U.S.C. § 2253; see also Browder v. Director, Ill. Dep't of Corrections, 434

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U.S. 257, 265 (1978); Van Pilon v. Reed, 799 F.2d 1332, 1335 (9th Cir. 1986). Final orders are

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those that leave nothing to be done but the execution of the judgment. Catlin v. United States,
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324 U.S. 229, 233 (1945). In the context of habeas corpus proceedings, a final order disposes of

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all claims and either denies or grants habeas relief. Blazak v. Ricketts, 971 F.2d 1408, 1410 (9th

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Cir. 1992) (per curiam).

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The Court will not issue a certificate of appealability in this action. The order from which
Petitioner appeals did not dispose of all of his claims and did not deny or grant relief.
IT IS SO ORDERED.

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Dated: November 14, 2014

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Troy L. Nunley
United States District Judge

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