ORDER CONSTRUING PETITIONER'S NOTICE OF APPEAL TO BE IN PART A MOTION FOR A CERTIFICATE OF APPEALABILITY (DOC. 9) ORDER DENYING PETITIONER'S MOTION FOR A CERTIFICATE OF APPEALABILITY (DOC. 9)
SHEILA K. OBERTO, Magistrate Judge.
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 303. Pending before the Court is Petitioner's notice of appeal, which was filed on May 9, 2013.
In the notice, Petitioner requests that this Court issue a certificate of appealability. Accordingly, the notice is CONSTRUED to be in part a motion for a certificate of appealability.
The docket reflects that on April 29, 2013, the Magistrate Judge filed findings and recommendations to dismiss the petition for writ of habeas corpus without leave to amend because Petitioner had not stated claims cognizable in a proceeding pursuant to 28 U.S.C. § 2254. The findings and recommendations, which were served on Petitioner by mail on April 29, 2013, informed the parties that objections could be filed within thirty (30) days. Approximately ten days later, before the thirty-day period for Petitioner to file objections had passed, Petitioner filed his notice of appeal and the instant motion for certificate of appealability.
A district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. Rule 11(a) of the Rules Governing Section 2254 Cases in the District Courts (Habeas Rules).
The Court of Appeals has jurisdiction of appeals from "all final decisions" of the district courts except where direct review may be had in the Supreme Court. 28 U.S.C. § 1291. Pursuant to 28 U.S.C. § 1291, a judgment is final for the purpose of appeal when it 1) is a full adjudication of the issues, and 2) clearly evidences the judge's intention that it be the court's final act in the matter. Patel v. Del Taco, Inc. , 446 F.3d 996, 1000 (9th Cir. 2006). A Magistrate Judge's findings and recommendations do not constitute a final, appealable order because they cannot form the basis of a final judgment without subsequent intervention by the district court. Serine v. Peterson , 989 F.2d 371, 372-73 (9th Cir. 1993).
Here, no final decision has been made in Petitioner's case; rather, the Magistrate Judge has made recommendations to the District Judge, to which Petitioner may file objections. After the period for filing objections passes, the District Judge will consider the findings and recommendations as well as any objections filed by Petitioner, and the District Judge will determine whether or not to adopt the recommendations.
There is presently no final order before the Court that is adverse to the applicant within the meaning of Habeas Rule 11(a). Therefore, it would be premature to issue a certificate of appealability. Accordingly, it is ORDERED that ...