Burgess v. Warden, Maryland House of Correction

• Decision Date: 18 November 1960
• Docket Number: No. 8252.,8252.
• Citation: 284 F.2d 486
• Parties: Earlie BURGESS, Appellant, v. WARDEN, MARYLAND HOUSE OF CORRECTION, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

284 F.2d 486 (1960)

Earlie BURGESS, Appellant, v. WARDEN, MARYLAND HOUSE OF CORRECTION, Appellee.

No. 8252.

United States Court of Appeals Fourth Circuit.

Submitted November 16, 1960.

Decided November 18, 1960.

Before SOBELOFF, Chief Judge, and HAYNSWORTH and BOREMAN, Circuit Judges.

SOBELOFF, Chief Judge.

Earlie Burgess, an inmate of the Maryland House of Correction, filed two petitions for writs of habeas corpus in the United States District Court for the District of Maryland. The court denied both petitions, and denied the certificate of probable cause required as a prerequisite for appeal under 28 U.S.C.A. § 2253, but allowed the petitioner to appeal in forma pauperis.

Where a District Court denies a state prisoner his petition for a writ of habeas corpus, and denies the certificate of probable cause but allows him to prosecute his appeal as a pauper, it has been our normal practice to appoint a lawyer, have briefs and oral arguments, and we have customarily allowed our ruling on the merits of the appeal determine whether or not a judge of this court would grant the necessary certificate of probable cause. Plater v. Warden, 4 Cir., 1958, 261 F.2d 445; Holly v. Smyth, 4 Cir., 1960, 280 F.2d 536; and cases therein cited. Although the statute might appear literally to preclude a hearing in the Court of Appeals before a certificate of probable cause is granted,¹ our past procedure has been clearly authorized by the Supreme Court. House v. Mayo, 1945, 324 U.S. 42, 65 S.Ct. 517, 89 L.Ed. 739; In re Burwell, 1956, 350 U.S. 521, 76 S.Ct. 539, 100 L.Ed. 666.

However, experience has shown that the procedure we have been following in cases of this type has resulted in granting full appellate hearings in many cases where the records themselves demonstrate a complete lack of any merit whatsoever. In a state habeas corpus case, where the record in the District Court, plus the prisoner's application to this court show no shred of merit, no beneficial purpose is served by appointing an attorney and having briefs and argument. It is an exercise of futility, for the petitioner gains no advantage when the only possible result of the hearing is to reaffirm what was perfectly obvious from the record and papers filed. In such a case, the court-appointed lawyer is at a loss to make any logical argument for reversing the District Court's action, and the time and effort of bench and bar are needlessly consumed.

Because of our experience in cases like this, we deem it desirable to modify somewhat the procedure heretofore followed. In In re Burwell, 1956, 350 U.S. 521, 522, 76 S.Ct. 539, 540, 100 L.Ed. 666, the Supreme Court stated:

"Earlier this Term we were constrained to find that the Court of Appeals for the Ninth Circuit was in error in deeming itself without jurisdiction to entertain applications for certificates of probable cause, under 28 U.S.C. § 2253, 28 U.S.C.A. § 2253, addressed to that court instead of to a judge or judges thereof. Accordingly, we reversed the judgments in these cases. Burwell v. Teets, 350 U.S. 808, 76 S.Ct. 98, 100 L.Ed. 726 Rogers v. Teets, 350 U.S. 809, 76 S.Ct. 98, 100 L.Ed. 726. Each of these cases was reversed `so that the petitioner\'s application for a certificate of probable cause may be entertained on its merits.\'

"We did not attempt to lay down a procedure for the Court of Appeals to follow for the entertainment of such applications on their merits. We shall not do so now. It is for the Court of Appeals to determine whether such an application to the court is to be considered by a panel of the Court of Appeals, by one of its judges, or in some other way deemed appropriate by the Court of Appeals within the scope of its powers. * * * It is not for this Court to prescribe how the discretion vested in a Court of Appeals, acting under 28 U.S.C. § 2253, 28 U.S.C.A. § 2253, should be exercised. * * * As long as that court keeps within the bounds of judicial discretion, its action is not reviewable."

Henceforth, in accordance with the discretion vested in us, attorneys will not normally be appointed nor hearings held in habeas corpus cases involving state prisoners until a...