Crisp v. Davey
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)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
DENZEL DEMAR CRISP,
No. 2:15-cv-0938 GEB KJN P
Petitioner, a state prisoner proceeding through counsel, has filed this application for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States
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
which were served on all parties and which contained notice to all parties that any objections to
the findings and recommendations were to be filed within fourteen days. Petitioner has filed
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
court has conducted a de novo review of this case. Having carefully reviewed the entire file, the
court finds the findings and recommendations to be supported by the record and by proper
In his objections, petitioner requests that the court issue a certificate of appealability.
Although the findings and recommendations directed petitioner to address whether a certificate of
appealiabilty should issue, a certificate of appealabilty is not appropriate at this time because no
final order or judgment has been entered.
In a habeas action, “the final order shall be subject to review” on appeal. 28 U.S.C. §
2253(a). “Unless a circuit justice or judge issues a certificate of appealability, an appeal may not
be taken to the court of appeals from ... the final order in a habeas corpus proceeding in which the
detention complained of arises out of process issued by a State court.” 28 U.S.C. §
2253(c)(1)(A). Section 2253 does not mention interlocutory appeals, nor does it authorize the
issuance of a certificate of appealability for an interlocutory appeal. Accordingly, petitioner’s
request for a certificate of appealability is denied.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed August 10, 2017, are adopted in full;
2. Respondent’s motion to dismiss (ECF No. 25) is denied;
3. Respondent shall file an answer to the petition within 30 days from the date of this
4. Petitioner’s request for issuance of a certificate of appealability is denied.
Dated: September 19, 2017
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?