Opinion
Case No. 2:20-cv-01133-FMO-KES
03-19-2020
WILLIAM JOE LONG, Petitioner, v. GEORGE JAIME, Warden, Respondent.
ORDER ACCEPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition (Dkt. 1), the other records on file herein, and the Report and Recommendation ("R&R") of the United States Magistrate Judge (Dkt. 5). The Court accepts the report, findings, and recommendations of the Magistrate Judge.
On March 5, 2020, the Court received a filing from Petitioner entitled, "Petitioner Objects to the Courts and Conceeds [sic] to the Recommendation [and] Report: ... Application for Certificate of Appealability from the District Court ... Notice of Appeal...." (Dkt. 6.) In this filing, Petitioner appears to state that he plans to file a new civil rights action bringing his claim under Proposition 57. He also appears to argue that the Court should issue a certificate of appealability as to his other two claims, so that he can appeal their denial to the Ninth Circuit. (See id. at 2 [stating that "petitioner conceeds [sic] to this claim and will file a civil suit in this District Court pertaining to issue one of being denied early parole consideration and moves to have this court dismiss claim one"]; id. at 3-5 [arguing a certificate of appealability should be granted as to grounds two and three].)
To the extent this filing consists of objections to the R&R, the Court has reviewed those portions of the R&R de novo, but nevertheless accepts the report, findings, and recommendations of the Magistrate Judge.
To the extent this filing is a request for a certificate of appealability, such a certificate is denied for the reasons explained in the Order Denying Certificate of Appealability issued concurrently with this order.
To the extent this filing is intended as a notice of appeal, it is not effective; he should file a new notice of appeal after judgment is entered. See Burnside v. Jacquez, 731 F.3d 874, 875 (9th Cir. 2013) (holding that a "notice of appeal from a magistrate judge's [R&R] is ineffective" and finding that district court erred by lodging premature notice of appeal and then filing it after R&R was adopted); see, e.g., Shaw v. Uribe, No. 11-cv-10675-CJC-JPR, 2014 WL 69512 at *1, 2014 U.S. Dist. LEXIS 2227 at *2 (C.D. Cal. Jan. 8, 2014) ("Petitioner filed a Notice of Appeal on December 6, 2013. Because Judgment had not yet been entered at that time, Petitioner's appeal was premature and ineffective. ... Should Petitioner desire to appeal from entry of Judgment, he must file another notice of appeal.").
IT IS THEREFORE ORDERED that Judgment be entered dismissing the Petitioner without prejudice to Petitioner raising the same claims in a civil rights action. DATED: March 19, 2020
/s/_________
FERNANDO M. OLGUIN
UNITED STATES DISTRICT JUDGE