Darryl Tyrone Burnside v. FRANCISCO JACQUEZ, Warden

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DARRYL TYRONE BURNSIDE,
Petitioner-Appellant,
v.
FRANCISCO JACQUEZ, Warden,
Respondent-Appellee.
No. 13-56009
D.C. No.
2:11-cv-10733-
JSL-DTB
ORDER
Appeal from the United States District Court
for the Central District of California
J. Spencer Letts, Senior District Judge, Presiding
Submitted to Motions Panel
August 26, 2013*—San Francisco, California
Filed September 23, 2013
Before: Mary M. Schroeder, Edward Leavy,
and Marsha S. Berzon, Circuit Judges.
Order
* The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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BURNSIDE V. JACQUEZ 2
SUMMARY**
Habeas Corpus
In a published order, a motions panel dismissed an appeal
for lack of jurisdiction, but construed a pro se appellant’s
letter and motion for appointment of counsel as a notice of
appeal from a final judgment.
The panel first held that appellant’s notice of appeal was
ineffective because it was premature and only challenged the
magistrate judge’s report and recommendation. The panel
next construed appellant’s letter and motion for appointment
of counsel, dated after the final judgment, to be a notice of
appeal from the final judgment. The panel ordered the Clerk
to transmit the letter and motion to the district court for filing
as a notice of appeal and request for certificate of
appealability, and denied all pending motions as moot.
COUNSEL
Darryl Tyrone Burnside, Lancaster, California, pro se
Appellant.
David Elgin Madeo, Office of the Attorney General,
California Department of Justice, Los Angeles, California, for
Appellee.
** This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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BURNSIDE V. JACQUEZ 3
ORDER
Darryl Tyrone Burnside, a California state prisoner, filed
a petition for writ of habeas corpus in the district court. On
February 25, 2013, the magistrate judge issued a report and
recommendation to deny the petition. On March 10, 2013,
Burnside sent a premature notice of appeal to the district
court. The district court received and lodged the notice of
appeal on March 22, 2013, but did not file it. On May 28,
2013, the district court adopted the magistrate judge’s report
and recommendation, dismissed the action, and entered a
final judgment.
After the district court entered a final judgment, the
magistrate judge issued an order noting that, at the time
Burnside filed his notice of appeal, there was no appealable
order on file and that the notice of appeal was premature.
The magistrate judge further noted that, now that the district
court had entered a final judgment, the notice of appeal may
be filed pursuant to Federal Rule of Appellate Procedure
4(a)(2). The magistrate judge then directed the clerk to file
the notice of appeal. The clerk filed the notice of appeal on
June 6, 2013. This docket was opened as a result of that
filing.
On June 12, 2013, this court issued an order to show
cause regarding a lack of appellate jurisdiction because
Burnside’s notice of appeal pre-dates the final judgment and
only challenges the magistrate judge’s report and
recommendation. See Serine v. Peterson, 989 F.2d 371,
372–73 (9th Cir. 1993) (magistrate judge’s findings and
recommendations not appealable; premature appeal not cured
by subsequent entry of final judgment by district court). In

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BURNSIDE V. JACQUEZ 4
response to the order to show cause, Burnside filed a letter
and motion for appointment of counsel in this court.
It appears that the district court intended to assist
Burnside by directing the Clerk to file his notice of appeal
regarding the magistrate judge’s report and recommendation
after the entry of the final judgment. But such efforts could
not succeed, and instead can lure a pro se litigant into
believing his interests have been protected, when they have
not.
A notice of appeal from a magistrate judge’s report and
recommendation is ineffective. Holding that notice of appeal
until after the entry of a final judgment does not convert it
into an effective notice of appeal.
Here, the notice of appeal was directed at the magistrate
judge’s report and recommendation and was filed on March
10, 2013, when Burnside gave it to prison officials for
mailing to the district court. See Fed. R. App. P. 4(c);
Houston v. Lack, 487 U.S. 266, 276 (1988) (pro se notice of
appeal is filed at the time an incarcerated appellant delivers
it to prison officials for forwarding to the court). The district
court did not create a timely notice of appeal of the final
judgment by waiting until after the entry of that judgment and
then filing the notice of appeal from the magistrate judge’s
ruling as if it were a notice of appeal from the district court’s
final judgment.
Rule 4(a)(2) does not apply to appeals from a magistrate
judge’s report and recommendation. See Serine, 989 F.2d at
372–73. “Rule 4(a)(2) permits a notice of appeal from a
nonfinal decision to operate as a notice of appeal from the
final judgment only when a district court announces a

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BURNSIDE V. JACQUEZ 5
decision that would be appealable if immediately followed by
the entry of judgment.” See id. at 372 (quoting FirsTier
Mortgage Co. v. Investors Mortgage Ins. Co., 498 U.S. 269,
276 (1991)). The report and recommendation would not be
appealable if immediately followed by the entry of judgment,
because the district court first had to act on and adopt the
report and recommendation. See Serine, 989 F.2d at 372–73.
We must therefore dismiss this appeal for lack of
jurisdiction. Nevertheless, we construe appellant’s letter and
motion for appointment of counsel, dated June 25, 2013 and
received in this court on July 5, 2013, to be a notice of appeal
from the final judgment. See Estrada v. Scribner, 512 F.3d
1227, 1236 (9th Cir. 2008) (pro se prisoner’s motion for
appellate counsel satisfied requirements for notice of appeal
where motion identified party seeking to appeal, and
referenced judgment and district court’s issuance of
certificate of appealability).
The Clerk shall transmit appellant’s July 5, 2013 letter
and motion to the district court for filing as a notice of appeal
and request for a certificate of appealability from the final
judgment entered on May 28, 2013.
All pending motions are denied as moot.
DISMISSED.

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