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Hernandez v. Hartley

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


December 7, 2009

EDWARD HERNANDEZ, PETITIONER,
v.
J. HARTLEY, RESPONDENT.

The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

ORDER

On August 17, 2009, petitioner, a state prisoner proceeding pro se, filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On September 15, 2009, the magistrate judge dismissed the application for writ of habeas corpus with leave to file an amended petition. The magistrate judge noted that petitioner appeared to be challenging general procedures used by the Board of Parole Hearings, but petitioner did not allege that he had been denied parole. Petitioner was advised that he should indicate a specific Board of Parole Hearings denial or perhaps a § 1983 action requesting relief regarding the circumstances of confinement may be more appropriate. Petitioner filed a motion for reconsideration of the magistrate judge's order that was denied on October 22, 2009. Pending now before the court is petitioner's motion for a certificate of appealability, filed on November 10, 2009.

Under the provisions of 28 U.S.C. § 2253, petitioner must be granted a certificate of appealability in order to proceed with the appeal. Fed. R. App. P. 22(b). Section 2253 also provides that an appeal in a habeas corpus proceeding may only be taken from a "final order." 28 U.S.C. § 2253; see also Browder v. Director, Ill. Dep't of Corrections, 434 U.S. 257, 265 (1978); Van Pilon v. Reed, 799 F.2d 1332, 1335 (9th Cir. 1986). Final orders are those that leave nothing to be done but the execution of the judgment. Catlin v. United States, 324 U.S. 229, 233 (1945). In the context of habeas corpus proceedings, a final order disposes of all claims and either denies or grants habeas relief. Blazak v. Ricketts, 971 F.2d 1408, 1410 (9th Cir. 1992) (per curiam).

The order from which petitioner appeals did not dispose of all of his claims and did not deny or grant relief. Petitioner still retains the ability to file an amended petition or civil rights complaint. The court will not issue a certificate of appealability in this action.

IT IS SO ORDERED.

20091207

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