Sogoian v. United States

878 F.2d 386 Unpublished Disposition NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Louis SOGOIAN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. No. 87-2857. United States Court of Appeals, Ninth Circuit. Submitted* June 5, 1989. Decided June 20, 1989. Before TANG, CANBY and O'SCANNLAIN, Circuit Judges. — 1 — MEMORANDUM** — 2 — Louis Sogoian, a federal prisoner, appeals the dismissal of his habeas corpus petition under 28 U.S.C. Sec. 2255. We affirm. — 3 — Sogoian was extradited from Sweden and subsequently convicted by a jury of conspiracy to import counterfeit notes, and aiding and abetting the possession and concealment of counterfeit notes. He appealed his conviction. While his direct appeal was pending before this court, he filed a habeas petition under 28 U.S.C. Sec. 2255. The district court dismissed his petition, holding that it was premature because his direct appeal was still pending. — 4 — The district court was correct in dismissing the habeas petition. While exhaustion of the federal appellate process is not a jurisdictional requirement, a district court should not entertain a petition for habeas relief while there is an appeal pending in this court or in the Supreme Court. Feldman v. Henman, 815 F.2d 1318, 1321 (9th Cir.1987). See also Rules Governing Sec. 2255 Proceedings in the District Courts, Rule 5, Adv. Comm. Notes. The reason for this rule is that the disposition of the appeal may render the petition unnecessary. Feldman, 815 F.2d at 1320. — 5 — We note, however, that this court has since affirmed Sogoian's conviction. United States v. Sogoian, 861 F.2d 269 (9th Cir.1988) (No. 85-1060; unpublished mem. disposition). Barring any petition by Sogoian to the Supreme Court, he is not entitled to file a new petition for habeas relief in the district court. — 6 — AFFIRMED. Footnotes [-s] * The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a) and Ninth Circuit Rule 34-4 [-s-s] ** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3