William E. Thoresen, Iii, Petitioner, v. the Honorable William Goodwin, Respondent.petition of William E. Thoresen, Iii, 404 F.2d 338 (9th Cir. 1968)

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U.S. Court of Appeals for the Ninth Circuit - 404 F.2d 338 (9th Cir. 1968) June 10, 1968

John P. Frank, Lewis, Roca, Beauchamp & Linton, Phoenix, Ariz., for appellant.

Cecil F. Poole, U. S. Atty., Jerrold M. Ladar, Asst. U. S. Atty., San Francisco, Cal., for appellee.

ORDER

Before MERRILL, KOELSCH and BROWNING, Circuit Judges.

PER CURIAM.


Petitioner is lawfully in custody charged with a federal crime and awaiting trial upon that charge. The validity of the Maine conviction may relate to the question of guilt of the federal charge but it does not affect the legality of petitioner's being held to answer to the charge. Trial, and not habeas corpus, is the appropriate manner of resolving the issue of guilt of the federal crime and subordinate issues relating to elements of the crime. If the holding in Burgett v. Texas, 389 U.S. 109, 88 S. Ct. 258, 19 L. Ed. 2d 319 (1967), has been erroneously applied by respondent that fact can be raised upon appeal from final judgment. An interlocutory ruling upon the question is not an appealable order and we decline to review the question at this time.

Leave to file petition for writ of mandamus is denied.

Viewing the action of respondent as a denial of a writ of habeas corpus, certificate of probable cause is denied.

These proceedings are dismissed.