Opinion
CASE NO. 4:11-CV-53 (CDL).
August 16, 2011
ORDER
Petitioner JOSEPH D. KENNEDY has filed a notice of appeal (ECF No. 14); a motion to proceed in forma pauperis on appeal (ECF No. 17); and a motion for a certificate of appealability ("COA") (ECF No. 18).
On June 9, 2011, Petitioner submitted four motions: (1) "Motion for appointment of special investigator" (ECF No. 8); (2) "Motion for leave to amend/add to" (ECF No. 9); (3) "Motion for Change of Venue" (ECF No. 10); and (4) "Motion to void sentence" (ECF No. 11). In an Order dated June 15, 2011, the United States Magistrate Judge denied these four motions. (ECF No. 12).
In this motion, Petitioner requested the Court to "appoint a special attorney with investigative background." (ECF No. 9). This was Petitioner's second request for appoint of counsel. The first was filed on May 27, 2011 (ECF No. 3) and denied as premature on June 3, 2011 (ECF No. 7).
Petitioner seeks to appeal the June 15, 2011 Order. However, the United States Magistrate Judge's June 15, 2011 Order is not a final appealable order. See 28 U.S.C. § 636(b)(1)(A); 28 U.S.C. § 1291; Siers v. Morrash, 700 F.2d 113, 115-16 (3rd Cir. 1983) (explaining that every circuit considering the issue has determined that a United States Magistrate Judge's order on a nondispostive pretrial matter is not a "`final' appealable order for the purposes of 28 U.S.C. § 1291"). Therefore, Petitioner's notice of appeal is premature.
In relation to Petitioner's motion for a COA, 28 U.S.C. § 2253(c)(1)(A) provides as follows: "Unless a circuit justice or judge issues a [COA], an appeal may not be taken to the court of appeals from . . . the final order in a habeas proceeding in which the detention complained of arises out of process issued by a State court." Id. (emphasis added). "This provision governs final orders that dispose of the merits of a habeas corpus proceeding." Harbison v. Bell , 129 S. Ct. 1481, 1485 (2009). There has been no such "final order" in this case. As explained above, Petitioner seeks to appeal the United States Magistrate Judge's June 15, 2011 Order, which addresses only nondispositive pretrial matters. The appeal is, therefore, premature.
For these reasons, Petitioner's motion to proceed in forma pauperis on appeal and his motion for a COA are both DENIED.