Demorest

MEMORANDUM ***

Christopher Demorest appeals from the district court’s denial of his habeas corpus petition under 28 U.S.C. § 2254 . Demo-rest filed his notice of appeal after the magistrate judge filed his report and recommendation but before the district judge filed his order adopting the magistrate judge’s report and recommendation and denying Demorest’s petition.

Although neither party raised the question of whether we have jurisdiction over this appeal, we must address it sua sponte. See Hostler v. Groves, 912 F.2d 1158, 1160 (9th Cir.1990).

Demorest’s notice of appeal, filed on December 19, 2003, stated that he “hereby appeals to the U.S. Court of Appeal for the Ninth Circuit the district court’s order of December 1, 2003, in which the court entered judgment against petitioner, dismissing his habeas petition with prejudice.” The notice of appeal indicates that Demo-rest was actually appealing the magistrate judge’s report and recommendation, the only document filed on December 1, 2003. That report and recommendation was not a final decision. We therefore lack jurisdiction under 28 U.S.C. § 1291 . See Nasca v. Peoplesoft (In re Nasca), 160 F.3d *932 578 , 579 (9th…