Peter Johnson v. W. L. Montgomery

• Court: District Court, C.D. California
• Decided: October 8, 2021
• Docket: 2:19-cv-10380
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 PETER JOHNSON, ) Case No. CV 19-10380-PA (JPR) 11 ) Petitioner, ) 12 ) ORDER ACCEPTING FINDINGS AND v. ) RECOMMENDATIONS OF U.S. 13 ) MAGISTRATE JUDGE W.L. MONTGOMERY, Warden, ) 14 ) Respondent. ) 15 ) 16 17 On August 12, 2021, the Court entered judgment after 18 Petitioner had failed to file objections to the Magistrate 19 Judge’s Report and Recommendation. Petitioner moved to vacate 20 the judgment, and on August 23, 2021, the Court granted his 21 request, giving him “one more chance” to file objections. 22 Instead, he filed a notice of appeal on September 14, 2021. 23 Because there was not yet a final judgment, the notice of appeal 24 was premature and ineffective. See Burnside v. Jacquez, 731 F.3d 25 874, 875-76 (9th Cir. 2013) (dismissing appeal for lack of 26 jurisdiction because premature notice of appeal from magistrate 27 judge’s report and recommendation was ineffective); Serine v. 28 Peterson, 989 F.2d 371, 372-73 (9th Cir. 1993) (premature appeal 1 of magistrate judge’s findings and recommendations was not cured 2 by district court’s subsequent entry of final judgment). 3 The Court has reviewed the First Amended Petition, records 4 on file, and Report and Recommendation of U.S. Magistrate Judge. 5 The Court accepts the findings and recommendations of the 6 Magistrate Judge. IT THEREFORE IS ORDERED that Respondent’s 7 motion to dismiss the First Amended Petition as untimely is 8 GRANTED and this action is dismissed with prejudice. If 9 Petitioner wishes to appeal, he must file a new notice of appeal 10 in compliance with Federal Rule of Appellate Procedure 4(a). 11 12 13 DATED: PERCY ANDERSON 14 U.S. DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2