OpenJurist

36 F3d 1105 Hill v. L Saffle

36 F.3d 1105

Billy Joe HILL, Petitioner-Appellant,
v.
James L. SAFFLE, Warden; Attorney General of the Stat of
Oklahoma, Respondents-Appellees.

No. 93-5161.

United States Court of Appeals, Tenth Circuit.

Sept. 29, 1994.

ORDER AND JUDGMENT1

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

1

Before MOORE and KELLY, Circuit Judges, and BABCOCK,** District Judge.

2

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

3

Petitioner appeals the district court's order of June 22, 1993, which was entered pursuant to a partial remand from this court in appeal No.92-5246. In that order, the district court found that the only notice of appeal petitioner had filed was that dated December 11, 1992, which was untimely. In the present appeal, petitioner challenges the district court's finding and submits affidavits purporting to show that he placed a timely notice of appeal in the prison mail system in April 1992.

4

Before proceeding with the present appeal, we must first examine our jurisdiction to do so. McGeorge v. Continental Airlines, Inc., 871 F.2d 952, 953 (10th Cir.1989)(holding that court has duty to inquire into its own jurisdiction). The district court order from which petitioner attempts to take this separate appeal is not a final appealable order. Therefore, we have no jurisdiction to hear this appeal. See 28 U.S.C. 1291.

5

This appeal is DISMISSED for lack of jurisdiction. The mandate shall issue forthwith.

1

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993. 151 F.R.D. 470

**

Honorable Lewis T. Babcock, District Judge, United States District Court for the District of Colorado, sitting by designation