996 F.2d 1224
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Arthur Solomon GAFFORD, Petitioner-Appellant,
v.
W. DUNCAN; Attorney General of California; James H. Gomez,
Director, Respondents-Appellees.
No. 92-55945.
United States Court of Appeals, Ninth Circuit.
Submitted June 8, 1993.*
Decided June 15, 1993.
Before CANBY, FERNANDEZ and T.G. NELSON, Circuit Judges.
MEMORANDUM**
California state prisoner Arthur S. Gafford appeals pro se the district court's dismissal of his petition under 28 U.S.C. § 2254 for habeas relief. Gafford contends that his right to due process was violated because he was not taken before a magistrate until five days and fourteen hours after his arrest. Because the district court order is not a final order, we dismiss the appeal.
We raise sua sponte the issue of our jurisdiction to hear this appeal. See Abernathy v. Southern California Edison, 885 F.2d 525, 527 (9th Cir.1989). Pursuant to 28 U.S.C. § 1291, we have jurisdiction over appeals from final orders of the district court. "Ordinarily an order dismissing a complaint but not dismissing the action is not appealable under section 1291 unless circumstances make it clear that the court concluded that the action could not be saved by any amendment of the complaint." Hoohuli v. Ariyoshi, 741 F.2d 1169, 1171 n. 1 (9th Cir.1984).
On April 6, 1992, Gafford filed his habeas petition and claimed that his rights were violated under California law, which provides that an arrestee must be brought before a magistrate within two days of the arrest. On April 15, 1992, the district court dismissed Gafford's petition without prejudice "to [Gafford's] right to file a new petition containing complete and specific facts in support of the grounds for relief alleged." The district court gave no indication that the dismissal was intended to dispose of the action. See id. Therefore, we conclude that the district court's order is not a final and appealable order and dismiss for lack of jurisdiction.
DISMISSED.