Hinman v. Kirkegard et al

Filing 10

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 6 in full. The Petition is DISMISSED as an unauthorized second petition under 28 U.S.c. 2244(b). A certificate of appealability is DENIED. Signed by Judge Sam E Haddon on 8/8/2013. Mailed to Hinman. (TAG, )

Hinman v. Kirkegard et al

Doc. 10

FILED

AUG 08 2013
Clerk, U,S, DisIrtcI Court

Distl'icl Of Montana

Helena

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

BILLINGS DIVISION

RICHARD D. HINMAN,
Petitioner,

CV 13-46-BLG-SEH

vs.
ORDER
LEROY KIRKEGARD; ATTORNEY
GENERAL OF THE STATE OF
MONTANA,
Respondents.

United States Magistrate Judge Carolyn Ostby entered her Findings and
Recommendation' on July 8, 2013. Petitioner filed objections on July 15,2013. 2
The Court reviews de novo findings and recommendations to which objection is
made. 28 U.S.C. § 636(b)(l).

, Document No, 6.

2

Document No, 7.

Dockets.Justia.com

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Petitioner has also filed two Notices of Appeal. 3 Generally, the filing of a
notice of appeal divests a district court ofjurisdiction over those aspects of the
case involved in the appeal. Griggs v. Provident Consumer Discount Co., 459
U.S. 56, 58 (1982) (per curiam). "This transfer ofjurisdiction ... is not effected,
however, if a litigant files a notice of appeal from an unappealable order." Estate

a/Conners by Meredith v. O'Connor, 6 F.3d 656, 658 (9th Cir. 1993); Brown v.
United States Postal Serv., 860 F.2d 884, 886 (9th CiL 1988); Ruby v. Sec y 0/ the
Navy, 365 F.2d 385, 389 (9th Cir. 1966) (en bane). No finality attaches to Judge
Ostby's Findings and Recommendation unless and until they are adopted by this
Court. Accordingly, the Notices of Appeal will be disregarded as premature, and
this Court will proceed as if they had not been filed.
Upon de novo review of the record, I find no error in Magistrate Judge
Ostby'S Findings and Recommendation and adopt it in full.
ORDERED:
L

The Petition 4 is DISMISSED as an authorized second petition under
28 U.S.c. § 2244(b).

2.

A certificate of appealability is DENIED.

3Document Nos. 8 & 9.
4

Document No.1.
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3.

The Clerk is directed to enter judgment accordingly.

,;-tA.

DATED this ~ day of August, 2013.

United States District Judge

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