                                                                             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                             NOT FOR PUBLICATION                              JAN 08 2010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
