Unpublished Disposition, 895 F.2d 1416 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 895 F.2d 1416 (9th Cir. 1990)

Dewey BAKER, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee.

No. 89-15139.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 9, 1990.* Decided Feb. 22, 1990.

Before WALLACE, ALARCON and LEAVY, Circuit Judges.


Dewey Baker was convicted for violating 18 U.S.C. § 751(a). Baker appealed the conviction, and that appeal is pending before this court. Subsequent to appealing the conviction, Baker sought habeas corpus relief, alleging a violation to his sixth amendment right to a speedy trial. The district court dismissed the habeas petition, reasoning that the pendency of the direct appeal deprived it of jurisdiction to consider the merits of the habeas petition. We affirm.

The general rule in this Circuit is 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 [, since the] 'disposition of the appeal may render the [habeas corpus writ] unnecessary.' " Feldman v. Henman, 815 F.2d 1318, 1320 (9th Cir. 1987) (quoting Black v. United States, 269 F.2d 38, 41 (9th Cir. 1959)). The rule is not jurisdictional. "The 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. 1981). We have held that extraordinary circumstances justify considering a collateral motion notwithstanding the pendency of a direct appeal, when the collateral motion raises serious questions affecting pivotal aspects of the direct appeal, and "implicates the fundamental fairness of the trial and propriety of the Government's actions." Id. (coram nobis petition raised serious questions of prosecutorial fraud upon the court during petitioner's trial). No such extraordinary circumstances are present here.



The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a) and 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 Ninth Circuit Rule 36-3