Unpublished Disposition, 878 F.2d 386 (9th Cir. 1989)

MEMORANDUM^** 

Louis Sogoian, a federal prisoner, appeals the dismissal of his habeas corpus petition under 28 U.S.C. § 2255. We affirm.

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. § 2255. The district court dismissed his petition, holding that it was premature because his direct appeal was still pending.

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.

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 United States v. Sogoian, 861 F.2d 269 (9th Cir. 1988) (No. 85-1060; unpublished mem.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.

AFFIRMED.