United States of America, Plaintiff-appellee, v. Leroy A. Schubert, Defendant-appellant, 78 F.3d 596 (9th Cir. 1996)
Annotate this CaseBefore: PREGERSON, CANBY, and HAWKINS, Circuit Judges.
MEMORANDUM**
Leroy A. Schubert appeals pro se the district court's dismissal of his second 28 U.S.C. § 2255 habeas petition. The district court dismissed Schubert's second petition without prejudice, stating that Schubert had a direct appeal pending in this court. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we review de novo. See Frazer v. United States, 18 F.3d 778, 781 (9th Cir. 1994). We affirm.
In Feldman v. Henman, 815 F.2d 1318, 1320 (9th Cir. 1987) we said 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. Despite the district court's mislabeling of Schubert's first section 2255 petition (No. 94-16662) as a pending direct appeal, the district court did not err by dismissing Schubert's second section 2255 petition without prejudice. Schubert's first section 2255 petition is tantamount to a direct appeal inasmuch as the sole relief sought by that petition is the reinstatement of his direct appeal. Therefore the district court properly dismissed Schubert's second section 2255 petition. See Feldman, 815 F.2d at 1320.
AFFIRMED.
The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4. Therefore, Schubert's request for oral argument is denied
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
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