United States v. Danny Fabricant

FILED
NOT FOR PUBLICATION JUN 30 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 13-50191
13-50271
Plaintiff - Appellee,
D.C. No. 2:03-cr-01257-RSWL
v.
DANNY JOSEPH FABRICANT, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Ronald S.W. Lew, District Judge, Presiding
Submitted June 25, 2014**
Before: HAWKINS, TALLMAN, and NGUYEN, Circuit Judges.
In these companion appeals, federal prisoner Danny Joseph Fabricant
appeals pro se from the district court’s order denying filing of his application for
an order requiring DNA testing under 18 U.S.C. § 3600, and from the district
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
court’s order denying his ex parte request for discovery. In Appeal No. 13-50191,
we remand. We dismiss Appeal No. 13-50271 for lack of appellate jurisdiction.
In Appeal No. 13-50191, Fabricant contends that the district court erred
when it refused to file his application for DNA testing on the ground that the case
was closed. We agree. As the government concedes, section 3600 provides a post-
conviction remedy. See 18 U.S.C. § 3600(a). Despite the government’s request
that we nevertheless affirm because the application fails on its face, we instead
remand to the district court with instructions to file the application and consider it
on the merits in the first instance.
In Appeal No. 13-50271, Fabricant challenges the district court’s order
denying his ex parte request for discovery. We dismiss the appeal for lack of
appellate jurisdiction. See Admiral Ins. Co. v. U.S. Dist. Ct., 881 F.2d 1486, 1490
(9th Cir. 1989) (discovery orders are not final appealable orders under 28 U.S.C.
§ 1291).
Appeal No. 13-50191 REMANDED with instructions; Appeal No. 13-
50271 DISMISSED.
2 13-50191 & 13-50271