Opinion
5:23-cv-02263-SB-KES
01-11-2024
RICHARD COLLINS, Petitioner, v. S. SMITH, Warden, Respondent.
ORDER ACCEPTING REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE
STANLEY BLUMENFELD, JR. UNITED STATES DISTRICT JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition (Dkt. No. 1), the other records on file herein, and the Report and Recommendation (“R&R”) of the U.S. Magistrate Judge (Dkt. No. 7). The deadline for filing objections to the R&R passed on December 14, 2023, and no objections were filed.
On December 22, 2023, petitioner filed a motion for extension of time to file an appeal, referring to the R&R as a “response and denial” and mailing his motion directly to the Ninth Circuit Court of Appeals. The Ninth Circuit docketed the motion as a notice of appeal and sent a courtesy copy to this Court. Dkt. No. 9. Based on the filing, it appears that petitioner incorrectly interpreted the R&R as a final decision and requested additional time to prepare an appeal from it. “A notice of appeal from a magistrate judge's report and recommendation is ineffective.” Burnside v. Jacquez, 731 F.3d 874, 875 (9th Cir. 2013); see Serine v. Peterson, 989 F.2d 371, 372-73 (9th Cir. 1993) (noting that a magistrate judge's findings and recommendations are not appealable and finding that a premature appeal is not cured by subsequent entry of final judgment by the district court).
Because the R&R is not an appealable order (as it expressly states), petitioner's filing does not divest this court of jurisdiction (even if petitioner's motion were construed as an appeal). United States v. Hickey, 580 F.3d 922, 928 (9th Cir. 2009) (“Filing an appeal from an unappealable decision does not divest the district court of jurisdiction.”); Est. of Conners by Meredith v. O 'Connor, 6 F.3d 656, 658 (9th Cir. 1993) (“Th[e] transfer of jurisdiction from the district court to the court of appeals is not effected, however, if a litigant files a notice of appeal from an unappealable order.”).
See also Christian v. Rhode, 41 F.3d 461, 470 (9th Cir. 1994) (no appellate jurisdiction of habeas petition until district court certifies appeal); Ruby v. Sec 'y of U.S. Navy, 365 F.2d 385, 389 (9th Cir. 1966) (district court may enter final order after appeal of unappealable order).
Accordingly, this Court continues exercising its jurisdiction and accepts the report, findings, and recommendations of the Magistrate Judge.
IT IS THEREFORE ORDERED that Judgment shall be entered dismissing the Petition and this action without prejudice due to lack of jurisdiction, because the Petition is successive.