Unpublished Disposition, 927 F.2d 608 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 927 F.2d 608 (9th Cir. 1989)

Johnathan BROOKS, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee.

No. 90-55115.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 4, 1990.* Decided Feb. 26, 1991.

Appeal from the United States District Court for the Central District of California, No. CV-89-2690-AAH; A. Andrew Hauk, District Judge, Presiding.

C.D. Cal.

AFFIRMED.

Before SNEED, REINHARDT and O'SCANNLAIN, Circuit Judges.


MEMORANDUM** 

* Johnathan Brooks's motion to withdraw his guilty plea was denied March 20, 1989. Following his sentencing, Brooks filed a motion to vacate, set aside or correct sentence, which was redesignated a petition for writ of habeas corpus1  and filed with the court on Brooks's behalf on May 4, 1989. On May 24, Brooks also filed a notice of appeal; that filing was untimely. Nonetheless, after the controversy endured two journeys to this court, District Judge Tashima ruled on October 3, 1989, that the direct appeal could proceed. District Judge Hauk then dismissed the petition in an order entered December 5, 1989, citing the pendency of the direct appeal. Brooks appeals the dismissal.

II

Petitioner asserts that the district court erred by failing to stay the direct appeal in order to permit further development of the record as to ineffectiveness of counsel. The usual rule is that a collateral petition should be dismissed if a direct appeal is pending contemporaneously. See Feldman v. Henman, 815 F.2d 1318, 1320 (9th Cir. 1987). A district court should only entertain a collateral motion during pendency of a direct appeal if "extraordinary circumstances" outweigh 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).

No such circumstances appear here. In Taylor, the court was shaken by a "clear, detailed, plausible, and unrebutted" claim of governmental misconduct which reached the very foundation of defendant's conviction and which could not be pursued on direct appeal. See id. at 574; see also id. at 573 n. 24 (listing various abuses which require collateral inquiry for substantiation). In contrast, Brooks's assorted assertions of ineffective assistance of counsel and of other claims are not so extraordinary and, in many cases, will be resolved on direct appeal.

Brooks also argues that the district court will eventually be required to hold an evidentiary hearing on those of his claims which are grounded outside the criminal record, and thus considerations of judicial economy argue against dismissal. Although the District of Columbia Circuit has adopted such a rule, see United States v. Cyrus, 890 F.2d 1245, 1247 (D.C. Cir. 1989), this circuit adheres to the view that federal appellate review should be exhausted prior to filing a habeas corpus petition. See Feldman, 815 F.2d at 1321.

Brooks also contends that the government's alleged failure on three occasions to respond to his motion entitled him to a default judgment, and that he should have been accorded an evidentiary hearing to establish his claim. No ground for a "default" appears. The government generally responded to Brooks's petition by urging dismissal because of the direct appeal. The one time the government failed to comply with a court order, the oversight was inadvertent and corrected.

III

The district court did not err in dismissing Brooks's petition for collateral review.

AFFIRMED.

 *

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

 1

It is not entirely clear whether the motion was to be treated as a writ for habeas corpus pursuant to 28 U.S.C. § 2241, or as a motion under 28 U.S.C. § 2255. For the purposes of this appeal, however, the distinction is of no moment