Selwyn Andrew Charles, Petitioner-appellant, v. William L. Hart, Respondent-appellee, 943 F.2d 57 (10th Cir. 1991)

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.

Selvyn Andrew Charles brought this habeas corpus action challenging his conviction by a military court martial. In this appeal he asserts as error the district court's grant of respondent's second request for an extension of time to respond to the court's show cause order. The action is otherwise proceeding in the district court. The lower court concluded that the order from which Charles appeals is not final, that the appeal is legally frivolous, and denied Charles leave to proceed on appeal in forma pauperis. We dismiss for lack of jurisdiction.

Under 28 U.S.C. § 2253 (1988), this court may only review the final order in a habeas corpus proceeding. See Andrews v. United States, 373 U.S. 334, 340 (1963); Collins v. Miller, 252 U.S. 364, 370 (1920); Bermudez v. Smith, 797 F.2d 108, 109 (2d Cir. 1986); Stewart v. Bishop, 403 F.2d 674, 677-78 (8th Cir. 1968). "A final decision generally is one which ends litigation on the merits...." Stewart, 403 F.2d at 678. In this case the order from which Charles appeals is not the final determination of the claims submitted to the district court. It is thus not a final order, and we are without jurisdiction to review it. See id.

Accordingly, the appeal is dismissed and Charles' motion for leave to appeal in forma paurperis is denied. The mandate shall issue forthwith.