The opinion
SOBELOFF, Senior Circuit Judge,
concurring:
I agree with my colleagues that the District Judge had facts before him to support his finding that Wilson’s crime was not a “product” of his mental condition under the Durham-McDonald rule, which until recently was the insanity test in this circuit. That rule was abrogated in United States v. Brawner, No. 22,714, 153 U.S.App.D.C. -, 471 F.2d 969 (1972) (en banc), and footnote 79 of the majority opinion in Brawner (at -of 153 U.S.App.D.C., at 1005 of 471 F.2d) limited the new rule to prospective application only. If the question were an open one, I would be inclined to agree with Judge Bazelon that, as a matter of policy, Brawner should be ap *1082 plied retroactively to this case which was in the “pipeline” when Brawner was handed down. This circuit en banc having decided otherwise, it would be most inappropriate for me as a visiting judge to suggest a departure from the clear statement of the law of the circuit as recently announced in footnote 79. Therefore, I concur in the affirmance of Wilson’s conviction.
Also, I agree with the court’s treatment of Wilson’s claim that his incarceration at Lewisburg amounts to cruel and unusual punishment, the District Judge having found that Wilson suffered from a mental disease. Unfortunately, the Attorney General’s discretion to transfer Wilson within the prison system is beyond review in this proceeding, and we have no jurisdiction over the conditions of appellant’s incarceration, he being physically in Lewisburg, Pennsylvania. In these circumstances, Wilson’s only recourse is a separate habeas, corpus petition in the Middle District of Pennsylvania.