Free Certificate of Appealability Denied - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 Pending before this Court is Defendant's Notice of Appeal [Doc. No. 175]. 13 Movant did not request a Certificate of Appealability with his Notice of Appeal, even 14 though one is required under 28 U.S.C. § 2253(c)(1)(B) in order for Movant to appeal to 15 the United States Circuit Court of Appeals for the Ninth Circuit. Nevertheless, the Court 16 will construe the Notice of Appeal as also including a request for a Certificate of 17 Appealability. 18 Procedural History 19 On March 23, 2005, Movant filed a Motion to Vacate and Set Aside Sentence 20 [Doc. No. 150] pursuant to 28 U.S.C.§ 2255. On April 5, 2005, the Court issued an Order 21 [Doc. No. 152] under which this matter was referred to Magistrate Judge Anderson for 22 further proceedings and the issuance of a Report and Recommendation. On June 21, 23 2005, Movant filed a Motion for Summary Judgment [Doc. No. 154] based on 24 Respondent's failure to timely file a response to his motion. On August 8, 2005, 25 Magistrate Judge Anderson issued a Report and Recommendation [Doc. No. 162], which 26 solely addressed, and subsequently denied Movant's Motion for Summary Judgment as 27 Respondent had requested and was granted an extension. 28
Case 2:01-cr-00118-SMM Document 177 Filed 10/06/2005 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

) ) ) Plaintiff/Respondent, ) ) vs. ) FRANCISCO GONZALEZ-CISNEROS,) ) ) ) Defendant/Movant. ) UNITED STATES OF AMERICA,

No. CR 01-118-PHX-SMM CV-05-0822-PHX-SMM (LOA) ORDER

1 Discussion 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2Case 2:01-cr-00118-SMM Document 177 Filed 10/06/2005 Page 2 of 2

After review of Movant's Notice of Appeal, the Court finds that Movant has untimely filed an appeal to an interlocutory order. In the Report and Recommendation [Doc. No. 162], Magistrate Anderson solely addressed Movant's Motion for Summary Judgement. Likewise, the Court's Memorandum of Decision and Order [Doc. No. 171] adopting the Report and Recommendation only adopted the Magistrate Judge's recommendation as to Movant's Motion for Summary Judgment. "The denial of a motion for summary judgment 'is an interlocutory order from which no appeal is available until the entry of judgment following the trial on the merits.'" Hopkins v. City of Sierra Vista, Ariz., 931 F.2d 524, 529 (9th Cir. 1991) (quoting Kraus v. County of Pierce, 793 F.2d 1105, 1107 (9th Cir. 1986)). Thus, the Court finds Movant's Notice of Appeal (construed by the Court as a request for a Certificate of Appealability) is premature and therefore also finds probable cause does not exist for an appeal as Movant has not made a substantial showing of the denial of a constitutional right and the Order challenged is not final or appealable.

ACCORDINGLY, IT IS HEREBY ORDERED that the Certificate of Appealability [Doc. No. 175] is DENIED. DATED this 6th day of October, 2005.