Pippin v. Dretke

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
December 2, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-70041
ROY LEE PIPPIN
Petitioner - Appellant
v.
DOUGLAS DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION
Respondent - Appellee
Appeal from the United States District Court for the
Southern District of Texas, Houston
No. H-02-CV-2319
Before KING, Chief Judge, and HIGGINBOTHAM and PRADO, Circuit
Judges.
PER CURIAM:*
Roy Lee Pippin, a Texas state inmate, appeals the district
court’s order granting summary judgment in favor of Dretke on
twenty-four of the twenty-six claims for relief raised in
Pippin’s habeas corpus petition. Because the district court’s
order was not a final order, we lack jurisdiction to hear
Pippin’s appeal at this stage of the case.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
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On June 20, 2002, Pippin filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. In his petition, Pippin
raised twenty-six claims for relief. On September 30, 2004, the
district court granted Dretke’s motion for summary judgment on
all but two of Pippin’s claims for relief. The remaining two
claims were left open so that additional discovery could be
pursued. On October 6, 2004, Pippin filed a notice of appeal of
the district court’s order. Subsequently, he asked the district
court to certify its order as to the twenty-four claims it had
ruled on so that he could appeal it. On November 17, 2004, the
district court denied Pippin’s motion for certification of
judgment pursuant to FED. R. CIV. P. 54(b). In its order denying
the motion for certification, the district court stated that this
case should be resolved in its entirety within a reasonably short
period of time and that Pippin’s rights will not be prejudiced by
any brief delay.
Pursuant to 28 U.S.C. § 1291, we have jurisdiction over
appeals from final orders of the district court. In accordance
with FED. R. CIV. P. 54(b), in an action involving multiple claims
for relief, “an order that finally disposes of one or more but
fewer than all of the claims for relief asserted . . . does not
terminate the action in the district court and is subject to
revision at any time prior to entry of a final decision . . . .”
Huckeby v. Frozen Food Express, 555 F.2d 542, 545 (5th Cir.
1977); see also Hardin v. M/V Ben Candies, 549 F.2d 395, 396 (5th
2
Cir. 1977) (per curiam). Thus, an order that disposes of some,
but not all, of a petitioner’s claims for relief is not a final
decision under 28 U.S.C. § 1291, but is instead an unappealable
interlocutory order. Huckeby, 555 F.2d at 545-56. In the
present case, the district court’s order granting summary
judgment on most, but not all, of Pippin’s claims for relief is
precisely this type of an order. While several limited
exceptions to the rule set forth in FED. R. CIV. P. 54(b) exist,
the present case does not fall within any of those exceptions.
Accordingly, since the district court denied Pippin’s motion for
certification under Rule 54(b), no final order exists in the
present case, and this court lacks jurisdiction to hear Pippin’s
appeal.
For the foregoing reasons, we DISMISS the appeal.
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