United States v. David Cervantes ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 11 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-10093
Plaintiff-Appellee, D.C. No.
4:21-cr-00328-YGR-1
v.
DAVID CERVANTES, AKA DC, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Yvonne Gonzalez Rogers, District Judge, Presiding
Submitted May 9, 2023**
San Francisco, California
Before: CHRISTEN and BRESS, Circuit Judges, and ANTOON,*** District Judge.
David Cervantes appeals from the district court’s order denying his motion
to quash a writ of habeas corpus ad prosequendum. Pursuant to the writ, Cervantes
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable John Antoon II, United States District Judge for the
Middle District of Florida, sitting by designation.
was transferred from California State Prison Solano, where he was serving a life
sentence for first-degree murder, to United States Penitentiary Atwater, where he is
being held pending trial on federal racketeering charges stemming from his alleged
leadership in a prison gang. Because the parties are familiar with the facts, we do
not recount them here. We dismiss the appeal for lack of appellate jurisdiction and
deny the petition for mandamus.
1. Collateral-Order Doctrine. Although 28 U.S.C. § 1291 limits our
jurisdiction to decisions in which district courts have entered final judgments,
“[u]nder the collateral-order doctrine a limited set of district-court orders are
reviewable ‘though short of final judgment.’” Ashcroft v. Iqbal, 556 U.S. 662, 671
(2009) (quoting Behrens v. Pelletier, 516 U.S. 299, 305 (1996)). To be reviewable
under the collateral order doctrine, “[t]he order must: 1) conclusively determine the
disputed question; 2) resolve an important issue completely separate from the
merits of the action; and 3) be effectively unreviewable on appeal from a final
judgment.” United States v. Mendez, 28 F.4th 1320, 1324 (9th Cir. 2022).
Even if Cervantes could satisfy the first two prongs of this test, he fails to
satisfy the third. The ways in which Cervantes has claimed that the writ could
cause him prejudice—such as interfering with his right to counsel, to access the
court, or to choose whether to plead guilty—can be reviewed on direct appeal if he
is convicted, and Cervantes has not met his burden of showing he would be
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prejudiced by the writ if he is acquitted.1 See United States v. Repp, 987 F.3d
1245, 1248 (9th Cir. 2021) (explaining that a prisoner’s attempted use of an ad
prosequendum writ to expedite proceedings on a supervised release violation did
not involve “an asserted right the legal and practical value of which would be
destroyed if it were not vindicated before trial” (quoting United States v.
McDonald, 435 U.S. 850, 860 (1978)). Ad prosequendum writs may in certain
circumstances qualify as reviewable collateral orders when prejudiced third parties
to whom the writs are directed appeal from them. See, e.g., Shoop v. Twyford, 142
S. Ct. 2037 (2022); Pa. Bureau of Corr. v. U.S. Marshals Serv., 474 U.S. 34(1985); Jackson v. Vasquez, 1 F.3d 885 (9th Cir. 1993). But the third-party
appellants in those cases were situated differently from Cervantes because they
were State actors subject to transportation orders that “create[d] public safety risks
and burdens on the State.” Twyford, 142 S. Ct. at 2043 n.1 (emphasis added). The
appellants were thus prejudiced in ways “that cannot be remedied after final
judgment.” Id. Cervantes has not shown he is similarly situated.
Because the order from which Cervantes appeals is neither a final order nor
otherwise appealable under the collateral-order doctrine, we dismiss his appeal for
lack of appellate jurisdiction.
1
We observe that Cervantes did not appeal from the district court’s separate order
that granted in part and denied in part his and his codefendants’ motion to modify
the conditions of their confinement.
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2. Mandamus. We deny Cervantes’ petition for mandamus. Cervantes has
not shown that the district court erred by concluding that the writ that led to his
transfer was necessary, let alone that his right to mandamus is “clear and
indisputable” or that mandamus is appropriate under these circumstances. Kerr v.
U.S. Dist. Ct. for N.D. Cal., 426 U.S. 394, 403 (1976) (quoting Banker’s Life &
Cas. Co. v. Holland, 346 U.S. 379, 384 (1953)).
Appeal DISMISSED; petition DENIED.
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