United States v. Leroy A. Schubert

78 F.3d 596 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. Leroy A. SCHUBERT, Defendant-Appellant. No. 95-15836. United States Court of Appeals, Ninth Circuit. Submitted Feb. 27, 1996. * Decided March 4, 1996. Before: PREGERSON, CANBY, and HAWKINS, Circuit Judges. 1 MEMORANDUM ** 2 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. 3 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…