Robert Edward Stansbury v. Arthur Calderon, Warden of the California State Prison at San Quentin

147 F.3d 1193

Robert Edward STANSBURY, Petitioner-Appellee,
v.
Arthur CALDERON, Warden of the California State Prison at
San Quentin, Respondent-Appellant.

No. 98-99004.

United States Court of Appeals, Ninth Circuit.

ug. 5, 1998.

Paul M. Roadarmel, Jr., Deputy Attorney General, Los Angeles, California for respondent-appellant.

Harry Simon, Deputy Federal Public Defender, Los Angeles, California for petitioner-appellee.

Appeal from the United States District Court for the Central District of California William Matthew Byrne, District Judge, Presiding. D.C. No. CV 95-8532-WMB.

Before: HUG, Chief Judge, FARRIS and SILVERMAN, Circuit Judges.

1

Prisoner Robert Stansbury moves to dismiss the Warden's appeal of the Order of the district court dated February 26, 1998. That order denied the Warden's Motion to Dismiss Stanbury's Petition for Writ of Habeas Corpus. The Warden's Motion to Dismiss was based on alleged deficiencies in the verification of the petition. After denying the motion to dismiss, the district judge declined the Warden's request to certify the Order for interlocutory appeal under 28 U.S.C. § 1292(b).

2

The district court's Order denying the motion to dismiss is not a final decision of the district court. It is an interlocutory order and therefore, not subject to immediate appellate review. 28 U.S.C. § 1291. No exception to the final judgment rule, such as the collateral order doctrine, applies. Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 108 S.Ct. 1133, 99 L.Ed.2d 296 (1988); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Therefore, this court lacks jurisdiction.

3

Stansbury's Motion to Dismiss the appeal for lack of jurisdiction is granted.

4

APPEAL DISMISSED.