143 F.2d 715 (9th Cir. 1944), 10638, Rutkowski v. St. Sure

Docket Nº:10638.
Citation:143 F.2d 715
Party Name:RUTKOWSKI v. ST.SURE, District Judge.
Case Date:June 30, 1944
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 715

143 F.2d 715 (9th Cir. 1944)

RUTKOWSKI

v.

ST.SURE, District Judge.

No. 10638.

United States Court of Appeals, Ninth Circuit.

June 30, 1944

Frank Rutkowski, in pro. per.

Frank J. Hennessy, U.S. Atty., and A. J. Zirpoli, Asst. U.S. Atty., both of San Francisco, Cal., for respondent.

Before WILBUR, MATHEWS, and STEPHENS, Circuit Judges.

STEPHENS, Circuit Judge.

Frank Rutkowski, petitioner herein, has applied to this court for the issuance by it of the writ of mandamus directed to Honorable A. F. St.Sure, United States District Judge for the Northern District of California, commanding him to entertain and decide Rutkowski's petition for the issuance of the writ of habeas corpus.

Judge St.Sure is the senior judge of a court consisting of four judges and as such is the executive head of the court. An order to show cause was issued out of this court to respondent Judge St.Sure to which Judge St.Sure has made his return, and petitioner has filed his traverse thereto. All statements of fact made in this opinion are taken from the pleadings mentioned or from documents made parts thereof.

Heretofore Rutkowski's petition for the writ of habeas corpus was received at the office of the above-named district court, and on July 26, 1943, it was filed in the office of the clerk of that court, and the proceedings was assigned to Judge Louis E. Goodman, a judge of that court, for his judicial action in accordance with the following rule of the court.

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Rule 1: 'All actions and proceedings of whatsoever kind or nature--including criminal, admiralty and bankruptcy-- shall be assigned to the several Judges in regular rotation, by the Clerk. Such assignment shall be made immediately upon the filing of the first document, and shall be indicated by placing the initial letter of the Judge's surname after the case number. No change in any assignment shall be made except by Court order approved by the Judges affected. ' 1

The petition was headed in the following manner:

'In the United States District Court For the Northern District of California, Southern Division

Frank Rutkowski

Petitioner,

vs.

James A. Johnston, Warden United States Penitentiary Alcatraz, California.

23, 875G

Petition for Writ of Habeas Corpus.

To the Honorable Judge St.Sure, United States District Court Judge.'

Judge Goodman as the judge of the court entertained the petition and on August 4, 1943, issued an order to show cause to James A. Johnston, respondent in the habeas corpus proceeding. To the order to show cause...

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