Daniel Rucker, Petitioner-appellant, v. Billy W. Compton, Respondent-appellee, 959 F.2d 236 (6th Cir. 1992)

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U.S. Court of Appeals for the Sixth Circuit - 959 F.2d 236 (6th Cir. 1992)

March 30, 1992


Before KENNEDY and SILER, Circuit Judges, and ENGEL, Senior Circuit Judge.


ORDER

This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Petitioner has filed a document which has been construed as a motion to reverse and dismiss.

A review of the record reveals that the district court denied petitioner's pro se motion for an immediate hearing in this habeas corpus case filed under 28 U.S.C. § 2254 by its order entered November 4, 1991. Thereafter, on November 14, 1991, petitioner filed a document which has been construed as a notice of appeal taken from the November 4, 1991, order. Thereafter, the district court dismissed petitioner's habeas petition as an abuse of the writ by its judgment entered December 12, 1991. Petitioner has not appealed the December 12, 1991, judgment.

Generally, an order is final and appealable if it ends the litigation on the merits and leaves nothing for the court to do but execute the judgment. Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978). This court lacks jurisdiction to review an order of the district court which is neither final nor otherwise appealable as an interlocutory order under 28 U.S.C. § 1292(b) absent a Fed. R. Civ. P. 54(b) certification. See Budinich v. Becton Dickinson & Co., 486 U.S. 196, 203 (1988). Here, the district court's order denying petitioner's motion for an immediate hearing is neither final nor otherwise appealable. Nor has petitioner appealed the final judgment entered in the case. Therefore, this court lacks jurisdiction over this appeal.

Accordingly, motion to reverse and dismiss is denied and the appeal is hereby dismissed for lack of jurisdiction. Rule 8(a), Rules of the Sixth Circuit.