Torres v. Diaz ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 EDUARDO TORRES, Case No.: 19cv1964 LAB (JLB) Petitioner, 11 ORDER DENYING MOTION FOR 12 v. CERTIFICATE OF APPEALABILITY [Dkt. 82] 13 RALPH DIAZ, Secretary, et al., Respondents. 14 15 Petitioner Eduardo Torres has moved for a certificate of appealability with 16 respect to Magistrate Judge Burkhardt’s Report and Recommendation (“R&R”) 17 which, in relevant part, denied Torres’s motion for leave to amend, and the Court’s 18 March 23, 2021 Order adopting that portion of the R&R. (Dkt. 82). 19 Rule 11, 28 U.S.C.A. foll. § 2254, governs certificates of appealability for 20 habeas corpus petitions brought, as this one was, under 28 U.S.C. § 2254.1 21 Rule 11 requires the Court to “issue or deny a certificate of appealability when it 22 enters a final order adverse to the applicant.” But the Court’s order wasn’t a “final 23 order” susceptible to appeal. An order is “final” if it “ends the litigation on the merits 24 25 26 1 Torres’ motion seeks a certificate of appealability under 28 U.S.C. § 2253, which 27 applies to petitions brought under 28 U.S.C. §2255. While the Court can’t apply § 2253 to Torres’ petition, the analysis and result under that statute would be the 28 1 and leaves nothing for the court to do but execute judgment.” Ray Haluch Gravel 2 Co. v. Central Pension Fund of Intern. Union of Operating Eng’rs & Participating 3 Emp’rs, 571 U.S. 177, 183 (2014). The order that Torres seeks to appeal didn’t do 4 that—despite the denial of leave to amend, his initial and still-operative petition has 5 live claims and the litigation is ongoing. (See Dkt. 50; Dkt. 51; Dkt. 90 (U.S. Court 6 of Appeals order stating that the Court “has not issued any orders that are final or 7 appealable”)). 8 Torres’ Motion for a Certificate of Appealability is DENIED. 9 At the time he filed his petition, Torres was housed at Salinas Valley State 10 Prison. Based on more recent filings—and the return as undeliverable of several 11 recent documents—it appears he is presently incarcerated at the California Health 12 Care Facility in Stockton, California. (See, e.g., ECF Nos. 82; 89; 92.) The Clerk is 13 ORDERED to modify the docket to reflect Torres’ current address and direct all 14 further correspondence with Petitioner to: BD8991, California Health Care Facility, 15 P.O. Box 32110, Stockton, CA 95213. Torres is ORDERED to file a notice of 16 change of address if his address changes again. 17 18 IT IS SO ORDERED. 19 DATED: October 6, 2021 ________________________________ 20 Hon. Larry Alan Burns 21 United States District Judge 22 23 24 25 26 27 28