Opinion
24-1288
08-08-2024
DEMIAN WEIGLE, Petitioner - Appellant, v. ANDRE STANCIL; PHIL WEISER, Respondents - Appellees.
(D.C. No. 1:23-CV-02338-NYW) (D. Colo.)
Before HOLMES, Chief Judge, HARTZ, and ROSSMAN, Circuit Judges.
ORDER
This matter is before the court on: (1) the jurisdictional show cause order it issued on July 17, 2024; and (2) pro se petitioner-appellant Demian Weigle's response. Upon consideration of these materials, the district court docket, and the applicable law, the court dismisses Mr. Weigle's appeal for the reasons it sets forth below.
In the case underlying this appeal, Mr. Weigle-through his then-counsel-filed a Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254, challenging the validity of his conviction in Boulder County District Court Case No. 2012CR1216. On September 14, 2023, the district court ordered respondents to file a pre-answer response limited to addressing the potential affirmative defenses of timeliness and exhaustion of state court remedies. [ECF No. 7]. On September 26, 2023, respondents filed their Pre-Answer Response, arguing that certain claims in the Application should be dismissed. [ECF No. 12]. The district court later granted Mr. Weigle's counsel's motion to withdraw, and Mr. Weigle filed a pro se reply to the Pre-Answer Response. [ECF No. 22].
Following consideration of the parties' briefing on the issues of timeliness and exhaustion of state court remedies, the district court dismissed Claims 2(a), 2(b), 2(d), and 3 in the Petition as procedurally defaulted, but directed respondents to file an answer that fully addresses the merits of remaining Claims 1, 2(c), and 4, which respondents have now done. [See ECF Nos. 31, 49].
Claims 1, 2(c), and 4 remain pending in the district court. Mr. Weigle has filed a motion for reconsideration of the district court's dismissal of Claims 2(a), 2(b), 2(d), and 3 [see ECF No. 39], which motion also remains pending.
This court has jurisdiction to review final decisions of the district courts. See 28 U.S.C. § 1291. Piecemeal review of interlocutory orders is generally not allowed. See 28 U.S.C. § 1291; Southern Ute Indian Tribe v. Leavitt, 564 F.3d 1198, 1207 (10th Cir. 2009); see also United States v. Nixon, 418 U.S. 683, 690-92 (1974) ("The finality requirement of 28 U.S.C. § 1291 embodies a strong congressional policy against piecemeal review, and against obstructing or impeding an ongoing judicial proceeding by interlocutory appeals.").
The district court case remains pending. Accordingly, the district court's order of partial dismissal is not a final order that is appealable under § 1291. See Utah v. Norton, 396 F.3d 1281, 1286 (10th Cir. 2005) ("Final decisions are those that end the litigation on the merits and leave nothing for the court to do but execute the judgment." (citations, alterations, and internal quotation marks omitted)).
Mr. Weigle argues that the district court's order of partial dismissal is nonetheless appealable under either 28 U.S.C. § 1292(a) or the collateral order doctrine. Neither of these arguments establish this court's jurisdiction.
Section 1292(a) provides for the interlocutory appeal of orders "granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions;" orders regarding receiverships; and certain admiralty orders. The district court's order of partial dismissal involves none of these things.
Further, under the collateral order doctrine, this court may review certain orders as appealable final decisions within the meaning of § 1291 even though the district court has not entered a final judgment. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). "To establish jurisdiction under the collateral order doctrine, defendants must establish that the district court's order (1) conclusively determined the disputed question, (2) resolved an important issue completely separate from the merits of the case, and (3) is effectively unreviewable on appeal from a final judgment." Gray v. Baker, 399 F.3d 1241, 1245 (10th Cir. 2005) (citing Midland Asphalt Corp. v. United States, 489 U.S. 794, 799 (1989)).
Here, however, the district court's dismissal of some-but not all-of Mr. Weigle's claims is reviewable upon entry of final judgment as to all claims and all parties. See § 1291. Therefore, the collateral order doctrine does not apply. See Gray, 399 F.3d at 1245. The court finds Mr. Weigle's arguments to the contrary unavailing.
For the foregoing reasons, this court lacks jurisdiction over this appeal.
APPEAL DISMISSED.
Entered for the Court