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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DENZEL DEMAR CRISP,

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No. 2:15-cv-0938 GEB KJN P

Petitioner,

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v.

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DAVE DAVEY,

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ORDER

Respondent.

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Petitioner, a state prisoner proceeding through counsel, has filed this application for a writ

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of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States

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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

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which were served on all parties and which contained notice to all parties that any objections to

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the findings and recommendations were to be filed within fourteen days. Petitioner has filed

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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

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court has conducted a de novo review of this case. Having carefully reviewed the entire file, the

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court finds the findings and recommendations to be supported by the record and by proper

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analysis.

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In his objections, petitioner requests that the court issue a certificate of appealability.

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Although the findings and recommendations directed petitioner to address whether a certificate of

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appealiabilty should issue, a certificate of appealabilty is not appropriate at this time because no

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final order or judgment has been entered.

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In a habeas action, “the final order shall be subject to review” on appeal. 28 U.S.C. §

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2253(a). “Unless a circuit justice or judge issues a certificate of appealability, an appeal may not

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be taken to the court of appeals from ... the final order in a habeas corpus proceeding in which the

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detention complained of arises out of process issued by a State court.” 28 U.S.C. §

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2253(c)(1)(A). Section 2253 does not mention interlocutory appeals, nor does it authorize the

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issuance of a certificate of appealability for an interlocutory appeal. Accordingly, petitioner’s

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request for a certificate of appealability is denied.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed August 10, 2017, are adopted in full;

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2. Respondent’s motion to dismiss (ECF No. 25) is denied;

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3. Respondent shall file an answer to the petition within 30 days from the date of this

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order; and
4. Petitioner’s request for issuance of a certificate of appealability is denied.
Dated: September 19, 2017

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