Unpublished Disposition, 884 F.2d 1395 (9th Cir. 1988)

MEMORANDUM^** 

Franklyn Gene Perry (Perry) appeals from the dismissal of his 28 U.S.C. § 2255 petition. Perry seeks reversal on the following grounds:

One. The district court erred in dismissing his section 2255 petition because extraordinary circumstances justified considering the petition while his direct appeal was pending.

Two. The denial of his motion to submit a memorandum in excess of 30 pages violated due process.

Three. The denial of his pro se motion for grand jury transcripts violated due process.

Four. The district court abused its discretion in denying his motion seeking release of a letter written to the Bureau of Prisons by a former prosecutor.

* Perry was found guilty of Fraud by Wire, and Obstruction of Criminal Investigation. He filed a notice of appeal on March 4, 1985.

On October 20, 1987, Perry filed a petition for writ of habeas corpus under 28 U.S.C. § 2255 while his appeal was pending in this court. The district court dismissed the petition without prejudice because Perry's appeal had not been finally determined.

We review denial of a section 2255 petition independently and without deference to the district court. United States v. Quan, 789 F.2d 711, 713 (9th Cir.), cert. dismissed, 478 U.S. 1033 (1986). It is the law of this circuit that " [a] district court should not entertain a habeas corpus petition while there is an appeal pending in this court or in the Supreme Court" because "disposition of the appeal may render the habeas corpus writ unnecessary." Feldman v. Henman, 815 F.2d 1318, 1320-21 (9th Cir. 1987) (citations & quotations omitted) (emphasis in original). However, a district court "may entertain a collateral motion during the pendency of a direct appeal if 'extraordinary circumstances' outweigh the considerations of administrative convenience and judicial economy." United States v. Taylor, 648 F.2d 565, 572 (9th Cir.), cert. denied, 454 U.S. 866 (1981). The defendant bears the burden of "proving the existence of circumstances sufficiently extraordinary to warrant dual proceedings." Id.

This issue was rendered moot by this court's decision on September 27, 1988, affirming the appellant's conviction in CR-5-84-118-HDM. " [W]hen, pending an appeal from the judgment of a lower court ... an event occurs which renders it impossible for this court, if it should decide the case in favor of the plaintiff, to grant him any effectual relief whatever, the court ... will dismiss the appeal." Armster v. United States Dist. Court, 806 F.2d 1347, 1354 (9th Cir. 1986) (quotations omitted). See also United States v. Munsingwear, 340 U.S. 36, 39 (1950) (describing proper disposition of a case "which has become moot while on its way here or pending our decision on the merits").

Perry contends that the order of the district court entered on August 5, 1987, denying Perry leave to submit a memorandum in excess of 30 pages in support of his section 2255 petition violates due process. It is unnecessary for us to decide this question because the merits of Perry's habeas corpus petition are not properly before us.

Perry also contends that the order denying his motion for Grand Jury transcripts violates due process. Rule 3(c) of the Federal Rules of Appellate Procedure provides that the notice of appeal "shall designate the judgment, order or part thereof appealed from." Perry failed to designate this order in his notice of appeal. Therefore, this issue is not properly before us.

Perry claims that the district court abused its discretion in denying his motion for the release of a letter written to the Bureau of Prisons by a former prosecutor in December of 1985. However, Perry has not demonstrated that he has exhausted available administrative remedies for obtaining a copy from the Bureau of Prisons. Therefore, we dismiss Perry's claim without prejudice.¹ 

We remand this action to the district court with instructions to vacate the order dismissing the petition for writ of habeas corpus.

REMANDED.