Unpublished Dispositionroger L. Justice, Petitioner-appellant, v. Norris W. Mcmackin, Supt., Respondent-appellee, 895 F.2d 1413 (6th Cir. 1990)

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US Court of Appeals for the Sixth Circuit - 895 F.2d 1413 (6th Cir. 1990)

Feb. 8, 1990

Before KEITH and ALAN E. NORRIS, Circuit Judges, and CHARLES W. JOINER, Senior District Judge* .


This appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit.

The certified record on appeal discloses that petitioner, Roger L. Justice, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the District Court for the Northern District of Ohio. In support of his request for that relief, he raised a variety of constitutional challenges to his three convictions for aggravated robbery. A magistrate determined, however, that all of his claims lacked merit, and recommended the dismissal of the habeas petition. Despite petitioner's objections, the district court adopted the magistrate's report and recommendation in full and dismissed the petition for a writ of habeas corpus. Petitioner then filed an appeal to this court, Case No. 89-4026, and the district court subsequently granted a certificate of probable cause pursuant to Fed. R. App. P. 22(b). Petitioner then moved for a stay of any further proceedings in regard to his petition for habeas relief pending the final resolution of an on-going state action concerning his convictions. On November 24, 1989, petitioner filed a second notice of appeal, Case No. 89-4078, in which he sought review of the district court's purported denial of his motion for a stay. The district court, however, did not act on the motion for a stay until December 1, 1989, when it entered an order denying petitioner's request for that relief.

This court lacks jurisdiction in Case No. 89-4078. An order denying a motion for a stay is not final so as to be the subject of an appeal under 28 U.S.C. § 1291. Lynch v. Johns-Manville Sales Corp., 701 F.2d 43, 44 (6th Cir. 1983) (per curiam). Nor does the district court's order constitute an injunction immediately appealable pursuant to 28 U.S.C. § 1292. Denley v. Shearson/Am. Express, Inc., 733 F.2d 39, 41 (6th Cir. 1984) (per curiam).

Accordingly, it is ORDERED that Case No. 89-4078 be and hereby is dismissed for want of jurisdiction. Rule 9(b) (1), Rules of the Sixth Circuit.


The Honorable Charles W. Joiner, Senior U.S. District Judge for the Eastern District of Michigan, sitting by designation