Goldberg v. Hoffman

• Decision Date: 20 October 1955
• Docket Number: No. 11469.,11469.
• Citation: 226 F.2d 681
• Parties: Alexander M. GOLDBERG, Petitioner, v. Honorable Julius J. HOFFMAN, United States District Judge for the Northern District of Illinois, Eastern Division, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

226 F.2d 681 (1955)

Alexander M. GOLDBERG, Petitioner, v. Honorable Julius J. HOFFMAN, United States District Judge for the Northern District of Illinois, Eastern Division, Respondent.

No. 11469.

United States Court of Appeals Seventh Circuit.

October 13, 1955.

Rehearing Denied October 20, 1955.

Joseph A. Struett, Chicago, Ill., for petitioner.

Robert Tieken, U. S. Atty., John Peter Lulinski, Asst. U. S. Atty., Chicago, Ill., for respondent.

Before MAJOR, FINNEGAN and LINDLEY, Circuit Judges.

LINDLEY, Circuit Judge.

In our opinion of August 22, 1955, 225 F.2d 463, we disposed of the issues raised by this petition for mandamus insofar as it applied to the Attorney-General of the United States, the Assistant Attorney-General and the United States Attorney, on motions to dismiss, which we granted. No such motion having been made in behalf of Judge Hoffman, against whom also the petition runs, the cause remained for disposition as to him upon hearing.

Many of the facts related by petitioner and relied upon by him in support of his prayer for relief appear in our earlier opinion and it is unnecessary to repeat them. Furthermore, it is obvious that, insofar as the petition seeks a remedial order as to events occurring during the progress of the prosecution up to and including the trial and the verdict of guilty on April 25, 1955, this court is without power, on an application for writ of mandamus, to review alleged errors on the part of the trial judge, for the reason that an appeal in due course from the final judgment will adequately present to us the question of whether error has intervened. This follows as a matter of law, because a petition for a writ of mandamus is not available for use as an appeal. It is an extraordinary remedy to be granted only in extraordinary cases. As the Supreme Court said, in Ex parte Fahey, 332 U.S. 258, at page 260, 67 S.Ct. 1558, at page 1559, 91 L.Ed. 2041: "These remedies should be resorted to only where appeal is a clearly inadequate remedy. We are unwilling to utilize them as a substitute for appeal. As extraordinary remedies, they are reserved for really extraordinary causes." Consequently, the only proper prayer for relief in the present petition lies in the averment that defendant's physical condition is such that his life will be gravely in danger if he is sentenced in pursuance of the verdict of guilty. It was to prevent the entry of such a judgment that petitioner, defendant in the criminal case below,...