*1 414 CONCLUSION Hearings at the Crack
evidence offered fifty sell intent to with possession that the above, we mentioned the reasons For which the level at should grams of crack finding of a court’s AFFIRM “manager,” while be a is deemed to one statutory classifica- for basis rational cocaine, carried powder same level chal- Equal Protection reject the tion and five should quantities, larger 841(b)(1). in sold lenge to § 845, 99th no. H.R.Rep. kilograms. See AFFIRMED. (1986); 21 U.S.C. 12 sess. Cong, 2d Malone, 886 v. 841(b)(1); States United Cir.1989). (9th 1162, 1166 F.2d pow- crack and between
The distinction irration- arbitrary nor neither
der cocaine Shaw, F.2d v. States
al. United v. Cir.1991) (9th and United States
412, 416 (9th Hawkins, 899 F.2d Van REYNAGA, Plaintiff-Appellant, Johnnie between distinction 1990), held that the v. powder cocaine made cocaine base White; unconstitutionally vague CAMMISA; 841(b)(1)is not M. Steve Sharon Garcia, Cedillo; objectively T. two substances M. Michael Defendants-Appellees. Furthermore, penal- distinguishable. further in this statute ties embodied 91-15468. No. of eliminat- government interest legitimate Appeals, Court States United distribution substance ing controlled Circuit. Ninth larger prob- much presents a Crack abuse. cocaine, num- both powder than lem May 1992.* Submitted drug’s effects on and the ber users 3, 1992. Aug. Decided Hearings. Crack generally individual. by the posed problem If the extent for more severe need of crack
sale cocaine are powder
penalties than are at least evident, these issues
clearly enough pre- This
highly debatable. statutory classifica-
vent invalidation Co., at Products
tion. Carolene 784-85. at appeals that court of
Every federal Equal rejected an issue has this
confronted pro- sentencing challenge
Protection v. 841(b)(1). visions Cir.1991);
Lawrence, 951 F.2d 664; House, 939 F.2d at v. States
United Avant, F.2d States United Thomas, Cir.1990); 39-40; Cyrus, States United at 1248-49; v. Sol- States United at join these
omon, F.2d at 157. 841(b)(1). upholding
circuits 34(a); 34-4. 9th Cir.R. R.App.P. unanimously suitable panel finds *The argument. Fed. without oral for decision *2 Reynaga, pro Johnnie se. appearance No for defendants-appellees. FERGUSON, REINHARDT, Before: KOZINSKI, Judges. Circuit REINHARDT, Judge: Appellant, prisoner, a California state in pro filed a se action federal court under against defendants —a defender, public attorney, depu a district a ty attorney, and district a state trial judge seeking damages injunctive re — ground lief on the that the defendants had deprived right him of to his constitutional fair trial. The matter was referred to a magistrate.1 magistrate The found that immune from three of the defendants were damages Reynaga’s and that award request early relief—his re prison precluded from lease —was remedy his sole federal avenue for such a corpus. Mar was via writ habeas Bitterolf, 968 F.2d chetti v. Cir.1992). 1983 action ordered his state
“stayed
plaintiff
until
exhausts
magistrate directed that
remedies.” The
PROCEED
ACTION WILL NOT
“THIS
HE
AND UNTIL
FURTHER UNLESS
THAT
[Reynaga] NOTIFIES THE COURT
REME-
HE
EXHAUSTED STATE
HAS
Finally,
(emphasis
original).
DIES."
Clerk of
magistrate stated that
“[t]he
administratively
the court
is directed
and commanded
close the file in this case”
proceed
further
action shall
“[t]his
plaintiff notifies the court
unless and until
disposition
Reynaga’s
In view of our
Although
sheet indi-
action.
the district court’s docket
however,
"assigned”
appeal,
need not determine the
action was
cates that
consequences
an order
Magistrate
of the absence of such
Judge
Hol-
Shubb and "referred to”
purposes
lows,
assume for
record: we will
no order from the
from the
the record contains
but was "lost
authorizing
appeal that the order exists
judge
to exer-
of this
district
—Wilson, U.S.
States v.
jurisdiction
in the shuffle”. United
in that action.
If no such or-
cise
der,
-,-,
exists,
general,
specific
(1992).
any way
permitted
participate
was not
court’s de novo review. See
rem-
for the district
has exhausted state
writing
that he
636(b)(1);
Taylor
see also
prose- 28 U.S.C.
to resume
that he wishes
edies and
Reynaga appeals Oxford, 575
of this action.”
cution
(“[I]t
intended that the
order, including
impo-
was not
to hear and deter-
power
have the
would
stay.
sition of
*3
only in-
dispositive motions.
It was
mine
assign
disposi-
a
judge
a
could
tended that
hearing
magistrate for
and
motion to a
magistrates is
tive
power of federal
The
findings
proposed
and recom-
Here,
of
be
submission
636.
limited.
28 U.S.C.
§
judge
disposi-
ultimate
to the
for
the mendation
not consent to
parties
the
did
cause
disposi-
power over
adjudicatory
The
authority,2 tion.
plenary
magistrate’s exercise
only by
to be exercised
motions was
to the
tive
power was confined
that officer’s
it could with the assis-
636(b)(1).
judge,
the
but
granted by 28 U.S.C.
authority
§
upon the recommendation
tance and
636(b)(1)(A)states that
Section
may
neither section
magistrate.”). Under
magistrate
designate a
to
judge may
a
directly
magistrate
a final order
a
issue
any
matter
pretrial
hear and determine
only in
appeals:
court of
appealable to the
a mo
except
the
pending before
(1)(C)
is that officer vested
cases
subsection
relief,
on
judgment
for
for
tion
28 U.S.C.
authority.
with such
summary judgment, to
pleadings, for
the
636(c)(3); supra at 415 n.
§
or infor
quash an indictment
dismiss or
defendant,
sup
by the
to
mation made
Here,
magistrate did not submit
the
case, to dis
press
in a criminal
evidence
findings
court:
to the district
in
proposed
of a class
permit maintenance
miss or to
stead,
purported
an order that
he entered
a
action,
for failure to state
to dismiss
that,
is clear
stay Reynaga’s action. It
to
granted,
upon
relief can be
which
on
parties’
consent
in the absence of
action,
involuntarily dismiss an
to
and
magistrate’s exercise of
to the
the record
added).
to
Pursuant
(emphasis
beyond his
that order was
powers,
such
636(b)(1)(B),
may
authorize a
judge
a
also
§
(1)(A) specifically
authority. Subsection
including
hearings,
magistrate to “conduct
injunctive relief”
exempts “motions for
to a
hearings,
to submit
evidentiary
and
upon
category
pretrial
matters
from the
findings
proposed
of the court
judge
may enter an order.
a
which
disposi
fact,
for the
and recommendations
stay
imposition of the
ef
Magistrate’s
The
exempted in
those motions
tion” of
Reynaga’s request for an
fectively denied
636(b)(1)(A)
“applications
as
as well
therefore not authorized
injunction: it was
convict
relief made
individuals
posttrial
(1)(B)
(1)(A). Subsection
under subsection
offenses.”
ed of criminal
respect
“appli
that with
explicitly states
by individ
posttrial relief made
cations for
subsec-
primary
The
difference between
offenses,” magis
criminal
uals convicted of
(1)(A)
(1)(B)
that the former
tions
hearings, includ
only “conduct
trates
magistrate to “determine”
allows
hearings, and
submit to
ing evidentiary
(subject
[ ]
the review of
matter
proposed findings of
error)
the court
judge
legal
while
for clear or
court
disposit
recommendations
only to submit
fact and
[]
latter allows
Reyna-
Magistrate
construed
ion”.3
findings
recommendations”
“proposed
1992)
explicit
(noting
must be
636(c)
upon
that consent
grants magistrates,
2. Section
636(a)
magis-
record).
grants
powers
Section
parties, expansive
in civil
on the
consent of
actions,
any
powers
criminal cases involv-
including
power
or
“to conduct
trates similar
nonjury
ing
the defendant consents
proceedings
jury
civil matter
when
in a
misdemeanors
all
case,
magistrate.
entry
judgment
writing
See 28
in the
to a trial before
order the
juris-
636(a);
designated
specially
to exercise such
18 U.S.C. 3401.
when
courts he serves."
the district court or
diction
identical limita-
636(c)(1).
contains an
That subsection
does not re-
The record
28 U.S.C.
challenging
"prisoner petitions
condi-
given
tion for
any
here. See
consent was
flect that
such
opinion
express no
tions of confinement.”
v. Hot Wax
Record Productions
also Columbia
Records,
Reynaga’s
such a
Inc.,
action contained
whether
Cir.
on
ga’s
presenting
(collateral
precisely
orders);
action as
such an
see also Fed.R.Civ.P.
(1)(B)
54(b)
application:
(partial
subsection
therefore did
In
judgments),
general, stays
appealable..
authority
stay
not afford him the
not
to enter a
See Silberkleit v.
Kantrowitz,
that action or to order the Clerk to close
1983). However, exceptions to
the file until
that rule
exhausted his state
See, e.g.,
exist.
Moses H. Cone Memorial
remedies.
Sweeney,
United States v.
Cf.
Hosp. Mercury
Corp.,
Const.
U.S.
(holding
9-10,
927, 933-34,
authority
had no
to order
(1983) (stays leaving plaintiff “effectively
report
Clerk
a conviction to Califor
court”).
case,
out of
authorities). Finally, Magistrate’s
nia
was free to recommend to the district
order was in essence an involuntary dismis
Reynaga’s
court that
stayed:
if
(1)(A)
sal of
action: subsection
*4
adopted
district court had then
the rec
provides
that a
no authority
ommendation,
jurisdiction
we would have
to enter an order to that effect. See 28
over
appeal of the district
636(b)(1)(A)(stating
magis
that
§
court’s order because the district court’s
judg
trates cannot determine motions “for
practical
would have “the
effect of
pleadings,
ment on the
for summary judg
refusing
injunction,” Carson,
an
450 U.S.
ment,
...
to dismiss for failure to state a
84,
996,
at
101 S.Ct. at
and would have left
upon
granted,
which relief can be
Reynaga “effectively
Cone,
out of court”.
action”).
involuntarily
dismiss an
9-10,
Ordinarily,
appellate jurisdiction
we have
(or valid)
trate’s order was not a “final”
orders,
only over “final”
see 28 U.S.C.
appealable.
one and hence
was
1291, although
always
that
is not
§
States,
Jaliwala
United
945 F.2d
See, e.g.,
(interlocu-
case.
28 U.S.C. 1292
(7th Cir.1991) (dismissing appeal
decisions);
1292(a)(1)(in-
tory
28 U.S.C. §
jurisdiction
want of
final order
en-
junctions);
Brands,
Carson v. American
explicit
tered
was without
Inc.,
79, 84,
993, 996,
parties).
consent of
(orders
(1981)
having
prac-
L.Ed.2d 59
“the
refusing
tical
injunction”);
effect of
hand,
Co-
if
On the other
we conclude that
hen v.
Corp.,
Loan
jurisdiction
U.S.
lack
we
over erroneous orders
Beneficial
(1949)
us,
S.Ct.
-,-,
1737, 1740,
1987)
(holding
S.Ct.
114 L.Ed.2d (1991) (noting
"Congress
challenging jail clothing
evidence that
intended
that
1983 action
rules
(1)(B)
entirety
subject
(1)(B)
noting
[subsection
to include in their
]
is not
to subsection
primary categories
brought by
prison
the two
of suits
that
covered
section
"[t]he
conditions
confinement,
prisoners applications
corpus
636(b)(1)(B)
type
for habeas
relief
relate to the
—
pursuant
health,
concerning
safety,
pun-
to 28 U.S.C. §§ 2254 and 2255 and
and matters
ishment").
or
monetary
actions for
relief under
stay
discovery
injus- mandamus for
might suffer serious
ga’s
situation
action).
order
Magistrate entered an
Because we find that issuance
tices.
although
Reynaga’s action:
stayed
appropriate,
we
a writ is available
such
invalid, there is no
legally
that order was
jurisdictional
the related
need not address
obey-
that it was not
whatsoever
indication
propriety
Reyna-
concerning the
issue
the order was
by the Clerk. Because
ed
purported
appeal:
direct
“the avail-
ga’s
entered,
merely recommended to
and not
unnecessary to
ability of a writ makes it
(a
Reynaga
pro se liti-
appeal
an immediate
determine whether
court.
If we dis-
appealed it to this
gant)
Guam,
proceed Petitioner, in the district court.
however, pro se incarcerated. His legal
access to materials and to the clerk’s naturally procedural
office is limited. The
quagmire created ultra may
vires order deep well be too for some- petitioner’s
one in position escape. intervention, Reynaga’s our
Without civil
rights indefinitely. stalled It my understanding based on that we are
granting mandamus to these due unusual join Judge
circumstances Reinhardt’s
opinion. America,
UNITED STATES
Plaintiff-Appellee, *6 ENGLAND, Jr.,
Coleman Defendant-
Appellant. Reilly, Rose Deputy Federal Public De- fender, Cal., Angeles, Los for defendant- No. 90-50155. appellant. Appeals, Court Seide, David Z. Atty., Asst. U.S. Los An- Ninth Circuit. Cal., geles, plaintiff-appellee. Argued and Submitted June Aug.
Decided
Before D.W. THOMPSON, NELSON Judges, PANNER, Circuit District Judge.* THOMPSON, DAVID R. Judge: Appellant England, Coleman Jr. was con- victed of federal narcotics violations after cocaine was packages discovered in two he deposited mailing with the United States sup- Postal He Service. moved to press cocaine, evidence of contending prior the detention of his packages to their inspection sei- constituted unreasonable * Panner, sitting by designation. Honorable Owen M. Judge Oregon, Court for the District District