                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 21 2009

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



JOE LEONARD LAMBRIGHT,                           No. 09-99000

             Petitioner - Appellant,             D.C. No. 4:87-cv-00235-JMR

  v.
                                                 MEMORANDUM *
CHARLES L. RYAN,**

             Respondent - Appellee.



JOE LEONARD LAMBRIGHT,                           No. 09-15624

             Petitioner - Appellant,             D.C. No. 4:87-CV-00235-JMR

  v.

CHARLES L. RYAN,**

             Respondent - Appellee.



                   Appeal from the United States District Court
                            for the District of Arizona
                   John M. Roll, Chief District Judge, Presiding

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

      **     Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Charles L.
Ryan is substituted as Respondent-Appellee for Dora B. Schriro.
                      Argued and Submitted November 3, 2009
                               Pasadena, California

Before: SCHROEDER, REINHARDT and THOMPSON, Circuit Judges.




      Lambright appeals from two orders of the district court, dated December 4,

2008 and March 24, 2009. Each concerned a protective order (the Protective

Order), entered by the court on September 23, 2003, that prevented the state from

using at his capital resentencing proceedings material “discovered” in connection

with Lambright’s habeas proceedings. Because we conclude that the December 4

order was not appealable and that Lambright’s erroneous appeal from that order

resulted in the district court’s inability to establish a reviewable record in

connection with its March 24 order, we vacate and remand for further proceedings.




                                           I.

      This court lacks jurisdiction over Lambright’s appeal from the district

court’s December 4 order. That order announced the district court’s intention to

modify the Protective Order after the parties had an opportunity to advise it further

about what material they believed was privileged and/or should continue to be


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protected from use at resentencing. It was not appealable because it was not a final

order, did not conclusively determine the issue of modification, and was subject to

review on appeal if and when a final modification order was entered. Foltz v. State

Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1129 (9th Cir. 2003) (stating that, when

no other matters are pending, modification of a protective order is appealable as

either a final or a collateral order).

        Lambright argues that his appeal of the December 4 order deprived the

district court of jurisdiction to issue the March 24 order. However, it is well-

settled that filing an appeal from an unappealable decision does not divest the

district court of jurisdiction. Estate of Connors v. O’Connor, 6 F.3d 656, 658 (9th

Cir. 1993).

        The district court’s March 24 order vacated the Protective Order and denied

Lambright’s motion for an order sanctioning the state pursuant to Federal Rule of

Civil Procedure 37(b) for an earlier violation of the Protective Order. The March

24 order was a final decision because it resolved all the issues pending before the

court. Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 472 (9th Cir. 1992).

This court has jurisdiction to review the March 24 order pursuant to 28 U.S.C. §

1291.




                                           3
                                          II.

      The district court did not explain the factual or legal basis of its ruling on

Lambright’s motion to sanction the state for violating the Protective Order.

Instead, the court summarily dismissed the motion in a footnote. When a district

court fails to make findings of fact in a ruling on a motion for discovery sanctions,

the appellate court reviews its decision de novo. Adriana Int’l Corp. v. Thoeren,

913 F.2d 1406, 1408 (9th Cir. 1990). In this case, however, de novo review is not

possible because the record is unclear about the extent to which the Protective

Order was violated, the reasons the violation occurred, and the prejudice that

Lambright may have suffered as a result of the violation. Accordingly, we vacate

the district court’s dismissal of Lambright’s motion and remand so that the court

may resolve any disputed factual questions and make factual findings regarding the

circumstances surrounding, and the extent and effect of, the violation and then




                                           4
determine whether sanctions are warranted.1 See Ace Novelty Co. v. Gooding

Amusement Co., 664 F.2d 761, 763 (9th Cir. 1981) (vacating and remanding where

the absence of factual findings and analysis of relevant factors frustrated appellate

review).

                                          III.

      Lambright’s premature appeal cut short the district court’s efforts to identify

the material that Lambright believed merited continued protection under the

Protective Order or a modified protective order. In particular, Lambright never

responded to the court’s request that he identify material that was protected by his

attorney-client privilege, work-product privilege, or Fifth Amendment privilege

not to disclose information that could be used to establish aggravating factors or to

undermine his claim of mitigating factors during future capital sentencing

proceedings. Estelle v. Smith, 451 U.S. 454, 462 (1981). For the same reason,



      1
        To the extent that the district court implicitly based its sanctions decision on
its decision to vacate the Protective Order, we note that the propriety of the
underlying discovery order is not generally one of the factors to be considered in
ruling on a motion for sanctions, and is clearly not the only issue the court should
address. See United States v. Sumitomo Marine & Fire Ins. Co., 617 F.2d 1365,
1369 (1980) (listing factors to be considered in ruling on sanctions for violation of
discovery order); see also James Wm. Moore et al., Moore’s Federal Practice ¶
37.42[6] (3d ed. 2006) (“If sanctions are sought pursuant to Rule 37(b) for failure
to obey an earlier discovery order, the propriety of the underlying discovery order
generally will not be considered.”).

                                           5
Lambright had no opportunity to explain whether, in his view, non-privileged

material or material that did not emerge through the discovery process warranted

protection, given this court’s rationale in Bittaker v. Woodford: “If a prisoner is

successful in persuading a federal court to grant the writ [of habeas corpus], the

court should aim to restore him to the position he would have occupied, had the

first trial been constitutionally error-free.” 331 F.3d 715, 722 (9th Cir. 2003) (en

banc). As a result, the district court did not have sufficient information to rule on

the state’s motion to modify the Protective Order and the record does not contain

enough information to allow this court to review the district court’s decision on

that question. Accordingly, we vacate and remand for further proceedings. Ace

Novelty Co., 664 F.2d at 763.




      VACATED and REMANDED FOR FURTHER PROCEEDINGS IN
      ACCORDANCE WITH THIS DISPOSITION




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