Foster v. United States, Misc. No. 187.
Decision Date | 27 April 1965 |
Docket Number | Misc. No. 187. |
Citation | 344 F.2d 698 |
Parties | Walter Leroy FOSTER, Petitioner, v. UNITED STATES of America, Respondent. |
Court | U.S. Court of Appeals — Sixth Circuit |
Walter Leroy Foster, in pro. per.
Merle M. McCurdy, U. S. Atty., Cleveland, Ohio, for respondent.
Before MILLER, CECIL and PHILLIPS, Circuit Judges.
Petitioner, a prisoner in the United States Penitentiary at Marion, Illinois, filed a motion in the district court on July 6, 1964, to vacate sentence under 28 U.S.C. § 2255. This motion was accompanied by a motion for leave to proceed in forma pauperis in which petitioner stated under oath that "he is a poor person without funds or property, real or otherwise, with which to defray the necessary costs incurred in filing and procession sic the current motion." Attached to the motion was a letter from the warden of the penitentiary stating that "we have checked his institutional account and find that he is without funds."
Under date of January 11, 1965, the district judge entered the following order:
"Upon consideration, IT IS ORDERED that the application of the petitioner for leave to file in forma pauperis is overruled."
Thereupon petitioner filed with the district court a notice of appeal and a motion for leave to appeal in forma pauperis. Under date of February 18, 1965, the district judge entered the following order:
"Upon consideration, IT IS ORDERED that the motion of petitioner to proceed on appeal in forma pauperis and for appointment of counsel is overruled."
Petitioner has now filed in this court an application to proceed on his appeal in forma pauperis and an affidavit of indigency.
As said by this court in Loum v. Underwood, 262 F.2d 866, 867 (C.A.6):
In Oughton v. United States, 310 F.2d 803, 804 (C.A.10), cert. denied, 373 U.S. 937, 83 S.Ct. 1542, 10 L.Ed.2d 693, the court said:
In the present case the district court...
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Yates v. Wellman, Misc. 74-1.
...constrained to grant leave to proceed and, if warranted, dismiss at a later point in light of subsequent proceedings. Foster v. United States, 344 F.2d 698 (6th Cir. 1965); Rimka v. Fayette County Bd. of Com'rs, Lexington, Ky., 360 F.Supp. 1263, 1264 The plaintiff's tendered pleadings, whic......
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Rimka v. Fayette County Bd. of Com'rs, Lexington, Ky., 2540.
...dismiss at a later point in light of subsequent proceedings. DuHart v. Carlson, 10th Cir., 469 F.2d 471 (1972); Foster v. United States, 6th Cir., 344 F. 2d 698 (1965). While there may very well have been only minimal interference with Rimka's rights, a summary dismissal at the initiatory l......
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Wartman v. Branch 7, Civil Division, County Court, Milwaukee County, State of Wis., 73--2117
...case did quote language referring to the dismissal of frivolous or malicious actions, in addition to quoting Loum. Foster v. United States, 344 F.2d 698, 699 (6th Cir. 1965). The Eighth Circuit has squarely held that the preferable procedure is to allow a case to be filed in forma pauperis ......