Unpublished Disposition, 867 F.2d 612 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 867 F.2d 612 (9th Cir. 1987)

Larry Dernell ARTHUR, Plaintiff-Appellant,v.Daniel J. McCARTHY, Director of Corrections, Defendant-Appellee.

No. 87-6313.

United States Court of Appeals, Ninth Circuit.

Submitted*  Jan. 11, 1989.Decided Jan. 30, 1989.

Before WALLACE, CANBY and TROTT, Circuit Judges.


State prisoner Arthur appeals from the denial of his habeas corpus petition filed pursuant to 28 U.S.C. § 2254. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

McCarthy contests the timeliness of Arthur's notice of appeal. Arthur filed his notice of appeal on August 17, 1987. The 30-day period in which to file an appeal commences when the district court files a judgment on a separate document, as required by Fed. R. Civ. P. 58. The district court filed a final order denying Arthur's petition for habeas corpus relief on June 29, 1987. The record does not reveal, however, that the district court filed a judgment on a separate document. The 30-day period, therefore, did not commence and Arthur's appeal is timely. Vernon v. Heckler, 811 F.2d 1274, 1276 (9th Cir. 1987).

The existence of a properly entered separate judgment is not a necessary prerequisite of appellate jurisdiction. Id. The parties may waive the separate judgment requirement by failing to object on that ground. Id. McCarthy explicitly states that he does not object to the absence of a separate judgment. McCarthy, therefore, has waived this requirement.

Arthur states the issue on appeal as "whether evidence of asportation in this case is insufficient to support appellant's conviction for violating Penal Code Section 209(b) where the victim's movement was incidential [sic] to robbery and did not substantially increase the victim's risk of harm." For the reasons stated by the district judge, we affirm.



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth circuit Rule 34-4


This disposition is not appropriate for publication and may not be cited to or by the Courts of this Circuit except as provided by Ninth Circuit Rule 36-3