Hector Alvarez v. Hamilton WR Warden

USCA11 Case: 23-10778 Document: 10-1 Date Filed: 06/22/2023 Page: 1 of 3
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10778
Non-Argument Calendar
____________________
HECTOR ALVAREZ,
Petitioner-Appellant,
versus
HAMILTON WR WARDEN,
ATTORNEY GENERAL, STATE OF ALABAMA,
Respondents-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 1:22-cv-00117-LCB-HNJ
USCA11 Case: 23-10778 Document: 10-1 Date Filed: 06/22/2023 Page: 2 of 3
2 Opinion of the Court 23-10778
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Before ROSENBAUM, GRANT, and BRASHER, Circuit Judges.
PER CURIAM:
This appeal is DISMISSED, sua sponte, for lack of jurisdic-
tion. Hector Alvarez appeals from the magistrate judge’s January
10, 2023, report and recommendation (“R&R”) recommending
that his petition for a writ of habeas corpus, pursuant to 28 U.S.C.
§ 2254, be dismissed. Because the R&R had not been rendered final
by the district court at the time of the filing of the notice of appeal,
it was not directly appealable. See United States v. Schultz, 565 F.3d
1353, 1359 (11th Cir. 2009) (noting that we lack jurisdiction to hear
appeals directly from magistrate judges); McNab v. J & J Marine,
Inc., 240 F.3d 1326, 1327-28 (11th Cir. 2001) (explaining that, absent
consent to adjudication by a magistrate judge, decisions by a mag-
istrate judge pursuant to 28 U.S.C. § 636(b) are not final orders and
may not be appealed until rendered final by a district court); see also
Fed. R. App. P. 4(c)(1); Jeffries v. United States, 748 F.3d 1310, 1314
(11th Cir. 2014). Furthermore, the district court’s subsequent
adoption of the magistrate judge’s R&R did not cure the premature
notice of appeal. See Perez-Priego v. Alachua Cnty. Clerk of Ct., 148
F.3d 1272, 1273 (11th Cir. 1998) (noting that the court’s subsequent
adoption of a magistrate judge’s report and recommendation does
not cure the premature notice of appeal); Bogle v. Orange Cnty. Bd.
of Cnty. Comm’rs, 162 F.3d 653, 661 (11th Cir. 1998) (explaining that
a notice of appeal must designate an already existing judgment or
order, not one that is merely expected to be entered).
USCA11 Case: 23-10778 Document: 10-1 Date Filed: 06/22/2023 Page: 3 of 3
23-10778 Opinion of the Court 3
All pending motions are DENIED as moot. No petition for
rehearing may be filed unless it complies with the timing and other
requirements of 11th Cir. R. 40-3 and all other applicable rules.