Unpublished Disposition, 912 F.2d 470 (9th Cir. 1989)

MEMORANDUM^** 

After a conviction on narcotics offenses and the denial of an appeal to this court, the petitioner filed two separate motions pursuant to 28 U.S.C. § 2255 seeking to vacate, set aside, or correct his sentence. The district court denied the motions, and petitioner timely appeals.

One motion, filed on December 9, 1988, District Court No. CV-88-4747-EFL, alleged ineffective assistance of trial counsel. In another motion, filed June 5, 1989, District Court No. CV-89-1900-EFL, petitioner alleged that his sentence was illegal because it included a provision for supervised release.

The district court decided both petitions on August 30, 1989, under District Court No. CR-87-0190-EFL, which is the file number of the current proceeding.

Although the disposition of the two proceedings was decided in one consolidated opinion, the two proceedings are separate and distinct.

The district court extensively reviewed the ineffective assistance motion, which included five claims of defective counsel. The district court found petitioner's allegations inadequate, but dismissed four of the claims without prejudice. The court stated in detail the requirements petitioner must meet in order to present valid claims of ineffective assistance, and petitioner may amend his motion accordingly. See Noll v. Carlson, 809 F.2d 1446, 1448-1449 (9th Cir. 1987). Only with regard to one allegation--that petitioner's attorney inquired whether government witnesses had been granted immunity--did the district court dismiss the claim with prejudice. Because this pro se litigant has leave to amend the ineffective assistance motion, the judgment is not a final order and is not appealable. Catlin v. United States, 324 U.S. 229, 233 (1945); 28 U.S.C. § 2255. We therefore dismiss the appeal.

With regard to the second motion, CV-89-1900-EFL, involving the alleged illegality of petitioner's supervised release, the district court's judgment is a final appealable order. However, we affirm the district court's denial of the motion, for the reasons set forth by the district judge.

The appeal regarding CV-88-4747-EFL is not from a final order and is DISMISSED.

The district court's judgment regarding CV-88-1900-EFL is AFFIRMED.

Each party shall bear its own costs.