Hector Alvarez v. Hamilton WR Warden, et al, No. 23-10778 (11th Cir. 2023)
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USCA11 Case: 23-10778 Document: 10-1 Date Filed: 06/22/2023 In the Page: 1 of 3 [DO NOT PUBLISH] United States Court of Appeals For the Eleventh Circuit ____________________ No. 23-10778 Non-Argument Calendar ____________________ HECTOR ALVAREZ, versus Petitioner-Appellant, HAMILTON WR WARDEN, ATTORNEY GENERAL, STATE OF ALABAMA, Respondents-Appellees. ____________________ Appeal from the United States District Court for the Northern District of Alabama D.C. Docket No. 1:22-cv-00117-LCB-HNJ USCA11 Case: 23-10778 2 Document: 10-1 Date Filed: 06/22/2023 Opinion of the Court Page: 2 of 3 23-10778 ____________________ Before ROSENBAUM, GRANT, and BRASHER, Circuit Judges. PER CURIAM: This appeal is DISMISSED, sua sponte, for lack of jurisdiction. Hector Alvarez appeals from the magistrate judge’s January 10, 2023, report and recommendation (“R&R”) recommending that his petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, be dismissed. Because the R&R had not been rendered final by the district court at the time of the filing of the notice of appeal, it was not directly appealable. See United States v. Schultz, 565 F.3d 1353, 1359 (11th Cir. 2009) (noting that we lack jurisdiction to hear appeals directly from magistrate judges); McNab v. J & J Marine, Inc., 240 F.3d 1326, 1327-28 (11th Cir. 2001) (explaining that, absent consent to adjudication by a magistrate judge, decisions by a magistrate judge pursuant to 28 U.S.C. § 636(b) are not final orders and may not be appealed until rendered final by a district court); see also Fed. R. App. P. 4(c)(1); Jeffries v. United States, 748 F.3d 1310, 1314 (11th Cir. 2014). Furthermore, the district court’s subsequent adoption of the magistrate judge’s R&R did not cure the premature notice of appeal. See Perez-Priego v. Alachua Cnty. Clerk of Ct., 148 F.3d 1272, 1273 (11th Cir. 1998) (noting that the court’s subsequent adoption of a magistrate judge’s report and recommendation does not cure the premature notice of appeal); Bogle v. Orange Cnty. Bd. of Cnty. Comm’rs, 162 F.3d 653, 661 (11th Cir. 1998) (explaining that a notice of appeal must designate an already existing judgment or order, not one that is merely expected to be entered). USCA11 Case: 23-10778 23-10778 Document: 10-1 Date Filed: 06/22/2023 Opinion of the Court Page: 3 of 3 3 All pending motions are DENIED as moot. No petition for rehearing may be filed unless it complies with the timing and other requirements of 11th Cir. R. 40-3 and all other applicable rules.
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