Chavez-Nelson v. Dayton et al
Filing
67
ORDER denying 63 Motion for Certificate of Appealability(Written Opinion) Signed by Judge Patrick J. Schiltz on 9/29/2021. (ecw)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
SHAVELLE OSCAR CHAVEZ‐NELSON,
Case No. 17‐CV‐4098 (PJS/DTS)
Petitioner,
v.
ORDER
GOVERNOR TIM WALZ and
COMMISSIONER OF CORRECTIONS
PAUL SCHNELL,
Respondents.
The Court recently granted in part the motion of petitioner Shavelle Chavez‐
Nelson under Fed. R. Civ. P. 60(b) to reopen this case for the purpose of addressing one
of his claims of ineffective assistance of counsel. Notwithstanding the fact that that
claim remains pending, Chavez‐Nelson filed a notice of appeal and moves for a
certificate of appealability.
With certain exceptions not relevant here, a court of appeals has jurisdiction only
over a district court’s “final decisions.” 28 U.S.C. § 1291; SD Voice v. Noem, 987 F.3d
1186, 1191 (8th Cir. 2021). This means that neither side can appeal until the district
court is completely finished with the case and there is nothing left for the district court
to do. SD Voice, 987 F.3d at 1191. As the Court’s order on Chavez‐Nelson’s Rule 60(b)
motion is plainly not a final order, Chavez‐Nelson’s notice of appeal and motion for a
certificate of appealability are premature and the Court retains jurisdiction over this
case. State ex rel. Nixon v. Coeur D’Alene Tribe, 164 F.3d 1102, 1106 (8th Cir. 1999) (“To
prevent parties from using frivolous appeals to delay or interrupt proceedings in the
district court, that court does not normally lose jurisdiction to proceed with the case
when one party appeals a non‐appealable order.”). Chavez‐Nelson’s motion for a
certificate of appealability is therefore denied.
ORDER
Based on the foregoing, and on all of the files, records, and proceedings herein,
IT IS HEREBY ORDERED THAT petitioner’s motion for a certificate of appealability
[ECF No. 63] is DENIED.
Dated: September 29, 2021
Patrick J. Schiltz
United States District Judge
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