Rashad Babbs v. Scott Frakes

MEMORANDUM

Rashad Babbs appeals from the district court’s denial of his habeas corpus petition under 28 U.S.C. § 2254 . Because Babbs’s notice of appeal was untimely filed, this court lacks jurisdiction over his appeal.

Babbs filed a notice of appeal after the magistrate judge issued a report and recommendation that recommended denying his habeas petition. The district court clerk received Babbs’s notice of appeal on July 26, 2011, and docketed it the following morning on July 27, 2011. In the late afternoon on July 27, the district judge issued an order adopting the magistrate judge’s report and recommendation, denying Babbs’s habeas petition, and dismissing the action. This order was promptly followed by the entry of judgment. Babbs never filed a second notice of appeal.

Under this court’s precedent, a notice of appeal filed after the issuance of a magistrate judge’s report and recommendation but before the district court has acted on that report and recommendation is without effect, and its untimeliness cannot be cured by Federal Rule of Appellate Procedure 4(a)(2). Serine v. Peterson, 989 F.2d 371, 372 (9th Cir.1993). Although Babbs’s notice of appeal was docketed on the…