UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
January 3, 2012
TERRANCE ROBIN FURNESS,
JAMES D. HARTLEY,
The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER DISREGARDING PETITIONER'S NOTICE OF APPEAL AND REQUEST FOR CERTIFICATE OF APPEALABILITY AS PREMATURE [Doc. 8]
Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On December 6, 2011, the undersigned issued an order dismissing the instant petition and granted Petitioner thirty days to file an amended petition.
On December 27, 2011, Petitioner filed a notice of appeal and request for a certificate of appealability.
Petitioner's notice of appeal is premature as the Court's December 6, 2011, order was not a final appealable order and the appeal shall be disregarded. See e.g. Serine v. Peterson, 989 F.2d 371, 372-373 (9th Cir. 1993) (notice of appeal filed after the filing of a Magistrate Judge's findings and recommendations to dismiss the district court action, but before the District Judge adopted the Magistrate Judge's findings and recommendations and entered judgment, was held to be premature because the Magistrate Judge's order could not form the basis of final judgment without subsequent intervention by the district court).
Accordingly, it is HEREBY ORDERED that:
1. Petitioner's notice of appeal and request for a certificate of appealability are DISREGARDED as PREMATURE; and
2. Within thirty (30) days from the date of service of this order, Petitioner shall submit an amended petition in compliance with the Court's December 6, 2011, order or the undersigned will recommend dismissal of the action.
IT IS SO ORDERED.
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