United States v. Clifton Howard, III

FILED
NOT FOR PUBLICATION JAN 08 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-10307
Plaintiff - Appellee, D.C. No. CR-04-05234-OWW
v.
MEMORANDUM *
CLIFTON ELIAS HOWARD, III,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Oliver W. Wanger, District Judge, Presiding
Submitted December 15, 2009 **
Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.
Clifton Elias Howard, III appeals from the district court’s denial of his
request for investigatory and expert services under 18 U.S.C. § 3006A(e)(1). We
dismiss because the district court’s denial without prejudice was not a final,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
DRS/Research
appealable order and the issue is now moot.
At the time of the request at issue, Howard had not filed a timely 28 U.S.C.
§ 2255 motion raising any claims for relief. The district court denied the request
on the ground that it was unable to make a finding that the requested services were
necessary, as required by statute. The denial was without prejudice, and a review
of the district court’s docket in case number CR-04-05234 discloses that Howard
has subsequently filed a § 2255 motion collaterally attacking his conviction, along
with a new request for expert and investigatory services.
The district court’s denial without prejudice of Howard’s request under
section § 3006A was not a final order conferring appellate jurisdiction upon this
court. See 28 U.S.C. § 1291. Further, Howard’s subsequent request renders this
appeal moot.
DISMISSED.
DRS/Research 2 08-10307