Faile v. Hatcher

Full title: Brian S. FAILE, Petitioner-Appellant, v. Sherman HATCHER, Warden…

Court: United States Court of Appeals, Ninth Circuit

Date published: Jul 5, 2001

13 F. App'x 635 (9th Cir. 2001)

Opinion

13 Fed.Appx. 635 (9th Cir. 2001) Brian S. FAILE, Petitioner-Appellant, v. Sherman HATCHER, Warden, Respondent-Appellee. No. 99-17668. D.C. No. CV-96-00600-JBR. United States Court of Appeals, Ninth Circuit. July 5, 2001

Submitted June 6, 2001 San Francisco, California ^*.

* The panel unanimously finds this case suitable for decision without oral argument. Fed. R.App. P. 34(a)(2).

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Movant sought release from state custody. The United States District Court for the District of Nevada, Johnnie B. Rawlinson, J., denied motion. Movant appealed. The Court of Appeals held that order denying motion for release from state custody was not a final appealable order.

Dismissed.

Appeal from the United States District Court for the District of Nevada Johnnie B. Rawlinson, District Judge, Presiding.

Before PREGERSON, FERGUSON, HAWKINS, Circuit Judges.

MEMORANDUM ^**

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.

Brian Faile appeals the Magistrate Judge's order denying his motion for

Page 636.

release from state custody. The Judge denied the motion because Faile had completed his sentence and the state court had set a briefing schedule for his state habeas hearing. This Court does not have jurisdiction to hear Faile's appeal. Generally, courts of appeals may only consider cases when there has been a final decision in the court below. 28 U.S.C. § 1291. Absent explicit consent of the parties or authorization by the district court, magistrate judges do not have authority to issue final appealable decisions in habeas cases. 28 U.S.C. § 636; Nevada Local Rule 1B 1-4; Columbia Record Prods. v. Hot Wax Records, Inc., 966 F.2d 515, 516 (9th Cir.1992). In Faile's case, the District Court never expressly adopted the findings of the Magistrate Judge for the relevant order. Therefore, there was no final appealable decision.

Faile argues that the District Court implicitly adopted the Magistrate Judge's order when the court issued a Certificate of Appealability (COA). We need not determine the District Court's intent, however, because Faile filed his notice of appeal before the District Court issued the COA. A notice of appeal from a magistrate judge's report and recommendation that precedes the district court's judgment is not effective. Serine v. Peterson, 989 F.2d 371, 372-73 (9th Cir.1993).

DISMISSED.