SAMUEL QUEEN, JR. V. CONRAD GRABER, No. 16-35154 (9th Cir. 2017)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED JUL 3 2017 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT SAMUEL ROBERT QUEEN, Jr., Petitioner-Appellant, U.S. COURT OF APPEALS No. 16-35154 D.C. No. 3:15-cv-00916-AA v. MEMORANDUM* CONRAD GRABER, Respondent-Appellee. Appeal from the United States District Court for the District of Oregon Ann L. Aiken, District Judge, Presiding Submitted June 26, 2017** Before: PAEZ, BEA, and MURGUIA, Circuit Judges. Federal prisoner Samuel Robert Queen, Jr., appeals pro se from the district court’s order denying his motion for reconsideration of the court’s order dismissing his 28 U.S.C. § 2241 habeas petition for failure to prosecute. We dismiss. In denying Queen’s motion for reconsideration, the district court granted * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Queen leave to file an amended petition within 30 days. Rather than filing an amended petition, Queen immediately filed a notice of appeal. Because the district court’s order denying Queen’s motion for reconsideration granted Queen leave to amend his petition, the order was not a final decision and we lack jurisdiction over this appeal. See 28 U.S.C. § 1291; WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1135-37 (9th Cir. 1997) (en banc) (when a district court expressly grants leave to amend, it is plain that the order is not final). The Clerk is directed to send a courtesy copy of this decision directly to the chambers of the Honorable Ann L. Aiken. DISMISSED. 2 16-35154

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