Opinion
23-1176
06-27-2023
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DALE CHALLONER, Defendant-Appellant.
(D.C. Nos. 1:20-CV-00602-REB & 1:00-CR-00482-REB-2) (D. Colo.)
Before McHUGH, BRISCOE, and CARSON, Circuit Judges.
ORDER
We raise sua sponte the question of whether this court has jurisdiction over this appeal. In this case, the district court granted in part and denied in part federal prisoner Dale Challoner's 28 U.S.C. § 2255 motion and set a date for Mr. Challoner to be resentenced. However, before he could be resentenced, Mr. Challoner filed a notice of appeal, seeking to appeal the partial denial of his § 2255 motion.
Upon the opening of this appeal, this court issued a show cause order directing Mr. Challoner to show cause why this appeal should not be dismissed for lack of appellate jurisdiction because the partial denial of his § 2255 motion is not a final, appealable order prior to resentencing. Mr. Challoner has filed a show cause response stating "it appears the denial of § 2255 relief becomes a final judgment after resentencing." Upon consideration, we conclude that we lack jurisdiction over this appeal.
In Andrews v. United States, 373 U.S. 334 (1963), the district court granted the defendants relief under § 2255, and ordered them to be resentenced. Id. at 336. But before the resentencing hearings occurred, the government appealed the district court's § 2255 resentencing order. Id. The United States Supreme Court held that "the orders were interlocutory, not final." Id. at 339. According to the Court, it was "obvious that there could be no final disposition of the § 2255 proceedings until the petitioners were resentenced." Id. at 340 (citation omitted). In United States v. Kearn, we observed that "[u]nder Andrews, we will obtain appellate jurisdiction only after [defendant's] resentencing." 54 F.4th 1225, 1231 (10th Cir. 2022). See also United States v. Cruz, 774 F.3d 1278, 1284 (10thCir. 2014) (concluding that time to appeal accrues as of the resentencing order and not as of the earlier § 2255 order).
Because Mr. Challoner has not yet been resentenced pursuant to the district court's disposition of his § 2255 motion, there is no final, appealable order, and we lack jurisdiction to consider this appeal.
APPEAL DISMISSED.