William O'guin, Petitioner-appellant, v. Lloyd May, Respondent-appellee, 810 F.2d 202 (6th Cir. 1986)

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US Court of Appeals for the Sixth Circuit - 810 F.2d 202 (6th Cir. 1986)

Nov. 21, 1986

Before KEITH, MERRITT and WELLFORD, Circuit Judges.


This matter is before the Court on appeal from the district court's June 20, 1986, order reassigning judges in petitioner's habeas corpus action. The certified record has been received and has been construed by the Clerk as an application for certificate of probable cause pursuant to Rule 22(b), Federal Rules of Appellate Procedure.

Title 28 U.S.C. § 2253 provides for an appeal in a habeas corpus action from the final order of the district court. Such an appeal from such a final order cannot be taken without the issuance of a certificate of probable cause. However, the instant appeal was not taken from a final order. The order reassigning judges is not a final appealable order which ended the litigation on the merits nor does it fit into the collateral order exception. Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978); Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541 (1949); Catlin v. United States, 324 U.S. 229 (1945).

It is ORDERED that certificate of probable cause be denied as unnecessary since the appeal was not taken from the final judgment and the appeal be and hereby is dismissed for lack of jurisdiction. Rule 9(d) (1), Rules of the Sixth Circuit.