Poe v. Gladden, 16830.
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
| Writing for the Court | PER CURIAM |
| Citation | 287 F.2d 249 |
| Parties | Dupree POE, Appellant, v. Clarence T. GLADDEN, Warden of the Oregon State Pententiary, Salem, Oregon, Appellee. |
| Docket Number | No. 16830.,16830. |
| Decision Date | 06 March 1961 |
287 F.2d 249 (1961)
Dupree POE, Appellant,
v.
Clarence T. GLADDEN, Warden of the Oregon State Pententiary, Salem, Oregon, Appellee.
No. 16830.
United States Court of Appeals Ninth Circuit.
January 25, 1961.
Rehearing Denied March 6, 1961.
Quentin L. Kopp, San Francisco, Cal., for appellant.
Dupree Poe, in pro. per.
Robert Y. Thornton, Atty. Gen., of Oregon, Robert G. Danielson, Asst. Atty. Gen., of Oregon, for appellee.
Before POPE and HAMLEY, Circuit Judges, and JAMESON, District Judge.
HAMLEY, Circuit Judge.
In this habeas corpus proceeding the applicant, Dupree Poe, serving a life term in Oregon State Penitentiary, appeals from an adverse district court order. A certificate of probable cause was granted by a judge of this court, after which the district court granted Poe leave to appeal in forma pauperis. After Poe had filed his opening and reply briefs the chief judge of this court appointed counsel to represent Poe at the oral argument. Respondent
In the briefs and at the hearing in this court the appeal was argued on the merits, no jurisdictional problem being suggested. Our examination of the record, however, made after the case was taken under submission has revealed flaws in the perfecting of the appeal which require us on our own motion to dismiss the appeal on jurisdictional grounds.
Poe's original application for a writ of habeas corpus was denied by the district court on April 24, 1958. No appeal was taken therefrom. On June 4, 1958, Poe filed another application for a writ of habeas corpus and also a supplemental application. The district court denied the supplemental application by order entered on June 4, 1958. No appeal was taken from this order.
On June 18, 1958, Poe filed in the district court a "petition for rehearing" on the matters dealt with in his supplemental application of June 4, 1958. On July 21, 1958, he filed a motion to consolidate in one proceeding his application and supplemental application of June 4, 1958. This indicates that it was Poe's understanding that the order of June 4, 1958, did not dispose of the application of that date but only the supplemental application.
On October 6, 1958, Poe filed a motion to withdraw certain papers not here relevant. On January 27, 1959, he filed a motion to obtain a change of district judges. On the same day he filed two additional motions to obtain immediate action on what he called his "amended petition." By this he must have meant his application or supplemental application of June 4, 1958, or his petition for rehearing of June 18, 1958, or all three.
The motion to obtain a change of district court judges was in effect granted, since the petition for rehearing and the other procedural motions described above were assigned to another judge of the district court of Oregon for disposition. The petition and all such motions were denied by order entered on September 28, 1959. It is from this order that Poe seeks to appeal.
A district court order denying a petition for rehearing is not appealable. De Jordan v. Hudspeth, 10 Cir., 137 F.2d 943. This is likewise true with regard to procedural motions of the kind which were dealt with in the order of September 28, 1959.
There is also another reason why the order of September 28, 1959, is not appealable. Under 28 U.S.C.A. § 1291, which is the appeals statute invoked here, only "final" decisions may be appealed. A decision "is final for the purpose of appeal only `when it terminates the litigation between the parties on the merits of the case, and leaves nothing to be done but to enforce by execution what has been determined.' * * *" Parr v. United States, 351 U.S. 513, 518, 76 S.Ct. 912, 916, 100 L.Ed. 1377.
The order of September 28, 1959, here sought to be reviewed did not...
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