Crisp v. Davey

Filing 35

ORDER adopting 33 FINDINGS AND RECOMMENDATIONS and denying 25 Motion to Dismiss signed by District Judge Garland E. Burrell, Jr on 9/19/17: Respondent shall file an answer to the petition within 30 days from the date of this order. Petitioner's request for issuance of a certificate of appealability is denied. (Kaminski, H)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DENZEL DEMAR CRISP, 12 No. 2:15-cv-0938 GEB KJN P Petitioner, 13 v. 14 DAVE DAVEY, 15 ORDER Respondent. 16 Petitioner, a state prisoner proceeding through counsel, has filed this application for a writ 17 18 of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States 19 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On August 10, 2017, the magistrate judge filed findings and recommendations herein 20 21 which were served on all parties and which contained notice to all parties that any objections to 22 the findings and recommendations were to be filed within fourteen days. Petitioner has filed 23 objections to the findings and recommendations. In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 24 25 court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 26 court finds the findings and recommendations to be supported by the record and by proper 27 analysis. 28 ///// 1 1 In his objections, petitioner requests that the court issue a certificate of appealability. 2 Although the findings and recommendations directed petitioner to address whether a certificate of 3 appealiabilty should issue, a certificate of appealabilty is not appropriate at this time because no 4 final order or judgment has been entered. 5 In a habeas action, “the final order shall be subject to review” on appeal. 28 U.S.C. § 6 2253(a). “Unless a circuit justice or judge issues a certificate of appealability, an appeal may not 7 be taken to the court of appeals from ... the final order in a habeas corpus proceeding in which the 8 detention complained of arises out of process issued by a State court.” 28 U.S.C. § 9 2253(c)(1)(A). Section 2253 does not mention interlocutory appeals, nor does it authorize the 10 issuance of a certificate of appealability for an interlocutory appeal. Accordingly, petitioner’s 11 request for a certificate of appealability is denied. 12 Accordingly, IT IS HEREBY ORDERED that: 13 1. The findings and recommendations filed August 10, 2017, are adopted in full; 14 2. Respondent’s motion to dismiss (ECF No. 25) is denied; 15 3. Respondent shall file an answer to the petition within 30 days from the date of this 16 17 18 order; and 4. Petitioner’s request for issuance of a certificate of appealability is denied. Dated: September 19, 2017 19 20 21 22 23 24 25 26 27 28 2

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