Sweetney v. Johnston

WILBUR, Circuit Judge. Clarence Sweetney has tendered a petition for writ of habeas corpus addressed to the Honorable Curtis D. Wilbur, United States Circuit Court of Appeals for the Ninth Circuit, San Francisco, California, entitled, In the United States Circuit Court of Appeals for the Ninth Circuit, and it “respectfully shows to this Honorable Court”, etc. For the reasons stated in Ex parte Jefferson, 9 Cir., 106 F.2d 471, it will be assumed that this application is made to the Senior Circuit Judge rather than to the United States Circuit Court of Appeals for the reason that the court can issue writs of habeas corpus only in aid of its appellate jurisdiction, while the Senior Circuit Judge has co-ordinate jurisdiction with District Judges in considering a petition for writ of habeas corpus. 28 U.S.C.A. § 463(a); De Maurez v. Swope, 9 Cir., 100 F.2d 530. The Senior Circuit Judge has consistently followed the decision of Circuit Judge Woolley of the Third Circuit Court of Appeals, approved by that court, wherein the Circuit Judge declined to issue the writ of habeas corpus and thus disqualify himself from acting on an appeal from the final order in the proceedings where no reason is shown why the application could not, with equal propriety and facility, be presented to a United States District Judge or District Court. United States ex rel. Bernstein v. Hill, 3 Cir., 71 F.2d 159; O’Brien v. Swope, 9 Cir., 106 F.2d 471. Application denied.