Opinion
CV 19-10380-PA (JPR)
10-08-2021
PETER JOHNSON, Petitioner, v. W.L. MONTGOMERY, Warden, Respondent.
ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE
PERCY ANDERSON, U.S. DISTRICT JUDGE
On August 12, 2021, the Court entered judgment after Petitioner had failed to file objections to the Magistrate Judge's Report and Recommendation. Petitioner moved to vacate the judgment, and on August 23, 2021, the Court granted his request, giving him “one more chance” to file objections. Instead, he filed a notice of appeal on September 14, 2021. Because there was not yet a final judgment, the notice of appeal was premature and ineffective. See Burnside v. Jacquez, 731 F.3d 874, 875-76 (9th Cir. 2013) (dismissing appeal for lack of jurisdiction because premature notice of appeal from magistrate judge's report and recommendation was ineffective); Serine v. Peterson, 989 F.2d 371, 372-73 (9th Cir. 1993) (premature appeal of magistrate judge's findings and recommendations was not cured by district court's subsequent entry of final judgment).
The Court has reviewed the First Amended Petition, records on file, and Report and Recommendation of U.S. Magistrate Judge. The Court accepts the findings and recommendations of the Magistrate Judge. IT THEREFORE IS ORDERED that Respondent's motion to dismiss the First Amended Petition as untimely is GRANTED and this action is dismissed with prejudice. If Petitioner wishes to appeal, he must file a new notice of appeal in compliance with Federal Rule of Appellate Procedure 4(a).