Kenneth F. Nuckols, Petitioner-appellee, v. Dan M. Reynolds, Respondent-appellant, 70 F.3d 123 (10th Cir. 1995)

ORDER AND JUDGMENT¹ 

Kenneth F. Nuckols brought a petition for habeas corpus relief pursuant to 28 U.S.C. 2254 challenging his state court murder conviction and sentence of death. The federal district court granted partial summary judgment for Mr. Nuckols invalidating his death penalty. The court subsequently issued an order directing the parties to show cause why further relief should not be granted in the form of an order directing petitioner's release from custody on the instant conviction unless he is resentenced "to a sentence no more severe than life imprisonment with possibility of parole." Order, June 28, 1993. In response to the State's challenge to the show cause order, the court entered a stay of the order. It subsequently held that petitioner had been acquitted of the death sentence and that further efforts by the state to resentence him to death would constitute double jeopardy. The state has appealed this order on the merits although the stay was not lifted and no further direction was given.

We have jurisdiction in a habeas corpus proceeding only over a final order. See 28 U.S.C. 2253. The order which the State requests us to review is not final and we therefore are without jurisdiction to consider it.

The appeal is DISMISSED.