Ernest Lee Malone v. Jerry Steiner Attorney General of the State of California , 51 F.3d 281 ( 1995 )

51 F.3d 281

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Ernest Lee MALONE, Petitioner-Appellant,
v.
Jerry STEINER; Attorney General of the State of California,
Respondents-Appellees.

No. 94-16670.

United States Court of Appeals, Ninth Circuit.

Submitted March 21, 1995.*
Decided March 27, 1995.

Appeal from the United States District Court, for the Eastern District of California, D.C. No. CV-93-05305-REC; Robert E. Coyle, Chief Judge, Presiding.

Before: SNEED, POOLE, and BRUNETTI, Circuit Judges.

1

MEMORANDUM**

2

Ernest Lee Malone, a California state prisoner, appeals from the district court's order denying his request for an evidentiary hearing on his 28 U.S.C. Sec. 2254 habeas corpus petition challenging his conviction for murder and robbery. We dismiss the appeal for lack of jurisdiction.

3

We have jurisdiction to review a final order in a habeas proceeding. 28 U.S.C. Secs. 1291, 2253. An order is final if it grants or denies all of the relief requested and leaves nothing to do but execute the judgment. Blazak v. Ricketts, 971 F.2d 1408, 1410 (9th Cir.1992) (per curiam). If the finality of an order is ambiguous, we look to the intent of the district court. See id. Here, the district court denied Malone's request for an evidentiary hearing but did not rule on the merits of his habeas petition. Although the district court granted a certificate of probable cause to allow Malone to appeal, the court did not enter a separate, final judgment pursuant to Fed.R.Civ.P. 58. Accordingly, we lack jurisdiction to review the district court's non-final order. Cf. id.

4

DISMISSED.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3