Unpublished Disposition, 893 F.2d 1338 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 893 F.2d 1338 (9th Cir. 1989)

Henry FORERO, aka Antonio Ortega-Torres, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee.

No. 88-5916.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 4, 1989.* Decided Jan. 16, 1990.



Henry Forero appeals from the dismissal without prejudice of his habeas corpus petition filed pursuant to 28 U.S.C. § 2255. We affirm.

Forero was convicted of (1) conspiracy to possess with intent to distribute and distribution of a controlled substance, in violation of 21 U.S.C. § 846, (2) possession with the intent to distribute cocaine, in violation of 21 U.S.C. § 841(a) (1), and (3) aiding and abetting the intentional distribution of more than a kilogram of cocaine, in violation of 21 U.S.C. § 841(a) (1) and 18 U.S.C. § 2, in the Central District of California. On July 17, 1986, Forero filed a timely notice of appeal. Oral argument was heard on Forero's direct appeal on October 6, 1989 (No. 86-5191). That matter is currently under submission.

On March 10, 1987, Forero filed a habeas corpus petition pursuant to 28 U.S.C. § 2255. The district court dismissed this petition without prejudice because the appeal from the judgment of conviction was pending in this court. The instant appeal challenges the dismissal of the petition for habeas corpus without prejudice because of the pendency of Forero's direct appeal. The merits of the section 2255 petition are not before us.

In his direct appeal, Forero has raised issues concerning the accuracy of the reporter's transcript of his trial. The appeal has been pending for several years because of the delay in filing the reporter's transcript. Forero is not responsible for this inordinate delay. The prejudicial effect, if any, of the failure to prepare a transcript of the trial proceedings is under review by the panel that heard his direct appeal.

We have previously held that "a district court should not entertain a habeas corpus petition while there is [a direct] appeal pending in this court." Feldman v. Henman, 815 F.2d 1318, 1320 (9th Cir. 1987) (emphasis in original); see also United States v. Taylor, 648 F.2d 565, 572 (9th Cir.), cert. denied, 454 U.S. 866 (1981) (collateral assertion of error should usually be made subsequent to the date of the decision in the direct appeal). "The reason for this rule is that 'disposition of the appeal may render the [habeas corpus writ] unnecessary.' " Feldman, 815 F.2d at 1320 (citing Black v. United States, 269 F.2d 38, 41 (9th Cir. 1959), cert. denied, 361 U.S. 938 (1960)). Pendency of a direct appeal does not, however, deprive a district court of jurisdiction to consider a petition for a writ of habeas corpus. A district court may consider a collateral attack on a judgment of conviction if a showing is made of extraordinary circumstances that "outweigh the considerations of administrative convenience and judicial economy." Taylor, 648 F.2d at 572. In Taylor we held that a recitation of facts that "implicates the fundamental fairness of the trial and propriety of the Government's actions" may compel prompt inquiry. Id.

In his section 2255 petition Forero has not alleged facts showing the existence of extraordinary circumstances affecting the integrity of the fact-finding process at his trial. In Taylor, we concluded that the district court erred in dismissing a petition for a writ of coram nobis on the ground that a direct appeal from the judgment of conviction was pending, notwithstanding allegations that "the Government committed a fraud on the court which ultimately worked a great prejudice to Taylor's case." Id. at 571.

In the instant matter Forero contends that the court reporter is the wife of an assistant United States Attorney in the same district. This assertion standing alone does not demonstrate the existence of extraordinary circumstances affecting the outcome of the guilt phase of the criminal proceedings that would compel an evidentiary hearing during the pendency of his direct appeal. The district court did not err in dismissing Forero's habeas corpus petition without prejudice.



The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument pursuant to Fed. R. App. P. 34(a), Ninth Circuit Rule 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3