Gardner v. Pogue

• Citation: 558 F.2d 548
• Decision Date: 01 August 1977
• Docket Number: No. 76-1578,76-1578
• Parties: Gary D. GARDNER, Petitioner-Appellant, v. Edwin POGUE, Warden, Nevada State Penitentiary, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 548

558 F.2d 548

Gary D. GARDNER, Petitioner-Appellant, v. Edwin POGUE, Warden, Nevada State Penitentiary, Respondent-Appellee.

No. 76-1578.

United States Court of Appeals,

Ninth Circuit.

Aug. 1, 1977.

Robert N. Peccole, Las Vegas, Nev., submitted briefs for petitioner-appellant.

Frank J. Cremen, Deputy Dist. Atty., Las Vegas, Nev., submitted briefs for respondent-appellee.

Appeal from the United States District Court for the District of Nevada.

Before TRASK and ANDERSON, Circuit Judges, and TAKASUGI, ^* District Judge.

TRASK, Circuit Judge:

This is an appeal from a federal district court's denial of a petition for a writ of habeas corpus. Because the district court failed to comply with the requirements of Rule 22(b) of the Federal Rules of Appellate Procedure by issuing either a certificate of probable cause or a statement of its reasons for declining to grant one, we lack jurisdiction to hear the appeal. We remand the case for a determination consistent with this rule.

I.

On November 7, 1967, appellant pleaded guilty to the crime of second degree murder, and on December 20, 1967, a Nevada State District Court sentenced him to a 99-year prison term. On May 25, 1973, appellant filed a petition for post-conviction relief in the District Court of the State of Nevada. He alleged that his plea was coerced by threats to prosecute his family, that the State of Nevada obtained a confession from him by illegal interrogation methods, and that the state did not fulfill the promises it made in exchange for his guilty plea. On November 29, 1973, after a post-conviction evidentiary hearing at which petitioner was represented by counsel, the court denied his petition, and on July 10, 1975, the Supreme Court of Nevada affirmed this decision. On January 21, 1976, the United States District Court for the District of Nevada denied appellant's petition for a writ of habeas corpus. Appellant then appealed to this court, alleging the same issues he raised below.

II.

Before reaching the merits of appellant's contentions, we must decide whether we have jurisdiction over his appeal. Title 28 U.S.C. § 2253 permits an appellate court to review a denial of a petition for a writ of habeas corpus. But "where the detention complained of arises out of process issued by a State court," as it does in the present case, section 2253 does not allow an appeal "unless the justice or judge who rendered the order (denying the petition) or a circuit justice or judge issues a certificate of probable cause." ¹ Rule 22(b) of the Federal Rules of Appellate Procedure reiterates this requirement, and outlines the responsibilities of the district judge and the procedures for obtaining a certificate of probable cause from a circuit judge. Rule 22(b) provides:

"In a habeas corpus proceeding in which the detention complained of arises out of process issued by a state court, an appeal by the applicant for the writ may not proceed unless a district or a circuit judge issues a certificate of probable cause. If an appeal is taken by the applicant, the district judge who rendered the judgment shall either issue a certificate of probable cause or state the reasons why such a certificate should not issue. The certificate or the statement shall be forwarded to the court of appeals with the notice of appeal and the file of the proceedings in the district court. If the district judge has denied the certificate, the applicant for the writ may then request issuance of the certificate by a circuit judge. If such a request is addressed to the court of appeals, it shall be deemed addressed to the judges thereof and shall be considered by a circuit judge or judges as the court deems appropriate. If no express request for a certificate is filed the notice of appeal shall be deemed to constitute a request addressed to the judges of the court of appeals. If an appeal is taken by a state or its representative, a certificate of probable cause is not required."

The district judge issued neither a certificate of probable cause nor a statement of his reasons for refusing to grant one. However, he did give appellant leave to proceed in forma pauperis. Appellant has addressed no motion to this court or to any individual judge for the issuance of a certificate of probable cause, and none has been issued. Under the terms of section 2253, until appellant receives a certificate, he is not properly before us.

Appellant has raised two questions about the correct interpretation of section 2253 and Rule 22(b). First, we must determine whether a circuit judge may grant a certificate of probable cause before the district judge who denied the petition for a writ of habeas corpus has issued the certificate or a statement of his reasons for denying it. Second, we must ascertain the effect of a district judge's permission to proceed in forma pauperis, and decide whether such permission is tantamount to the issuance of a certificate of probable cause.

To answer the first of these questions, we need not look beyond the explicit language of Rule 22(b). The statute, 28 U.S.C. § 2253, does not require the applicant for a writ of habeas corpus to attempt to obtain a certificate of probable cause from the district judge before petitioning a circuit judge. Rule 22(b), however, is written in a form which indicates that this procedure must be followed. Although the rule, like section 2253, permits a district judge or a circuit judge to issue a certificate of probable cause, it imposes a clear responsibility upon the district judge who rendered the judgment to issue either a certificate or a statement detailing his reasons for declining to confer one. The language about the district judge's duties precedes the provisions of the rule relating to the issuance of a certificate of probable cause by a circuit judge. By the terms of the rule, a circuit judge is expected to consider the issuance of a certificate only after the district judge has given his explanation for failing to grant one. The penultimate sentence of the rule, which treats a notice of appeal as a request for a certificate of probable cause in the event that such an express request is not filed, fits within the scheme of the rule, and takes effect only after the district judge has acted. Nothing in the rule suggests that a circuit judge may grant a certificate before the district judge has fulfilled his responsibilities.

A decision by this court to consider whether to grant a certificate of probable cause might well result in a denial of the certificate. This "would foreclose appellant from his first level right to a ruling by the district judge." Stewart v. Beto, 454 F.2d 268, 269 (5th Cir. 1971), cert. denied, 406 U.S. 925, 92 S.Ct. 1796, 32 L.Ed.2d 126 (1972). The absolute power of a district judge to allow a habeas appeal by granting a certificate of probable cause implies that the right to a "first level" ruling is substantive. See Nowakowski v. Maroney, 386 U.S. 542, 87 S.Ct. 1197, 18 L.Ed.2d 282 (1967); Stewart v. Beto, supra. An initial ruling by this court would upset the statutory framework of section 2253 and Rule 22(b) and infringe upon the rights of a state prisoner seeking habeas corpus relief.

Appellant urges that the unique factual pattern of this case gives us jurisdiction to hear his appeal:

"The Granting of the Order Permitting Appeal in Forma Pauperis has the same affect (sic) as the certificate of probable cause and therefor would eliminate the necessity of the Certificate of Probable Cause. To reach a contrary conclusion would require duplicity of effort, for, if Appellant did not have probable cause for an appeal permission to proceed would not have been granted." Reply Brief for Appellant at 1.

To the extent that appellant equates the issuance of a certificate of probable cause with permission to prosecute an appeal in forma pauperis, he has misstated the law. The test for allowing an appeal in forma pauperis is easily met. Under 28 U.S.C. § 1915(a), "(a)n appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith." The good faith requirement is satisfied if the petitioner seeks review of any issue that is "not frivolous." Coppedge v. United States, 369 U.S. 438, 445, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). "Unless the issues raised are so frivolous that the appeal would be dismissed in the case of a nonindigent litigant . . . the request of an indigent for leave to appeal in forma pauperis must be allowed." Ellis v. United States, 356 U.S. 674, 675, 78 S.Ct. 974, 975, 2 L.Ed.2d 1060 (1958). This standard, developed in criminal cases, applies as well to habeas corpus appeals. Pembrook v. Wilson, 370 F.2d 37, 39 (9th Cir. 1966).

The test for granting a certificate of probable cause is stricter. Although this court has at times stated that a certificate of probable cause should be granted as long as the issue raised is "not frivolous," e. g., Poe v. Gladden, 287 F.2d 249, 251 (9th Cir. 1961) ("not plainly frivolous"), it has more often required a question of some "substance" before issuing a certificate. E. g., Foster v. Field, 413 F.2d 1050, 1051 (9th Cir. 1969) ("substantial question"); Application of Burwell, 236 F.2d 770, 772 (9th Cir. 1956) ("questions of sufficient substance"); Fouquette v. Bernard, 198 F.2d 96, 98 (9th Cir. 1952) ("substantial question"). The difference between the terms "not frivolous" and "substantial" is perhaps one of art. Certainly it is subject to subtle analysis. Nevertheless, the very fact that different words are used to describe the standards for granting certificates of probable cause and in forma pauperis relief indicates that distinctions do exist. Judges considering this problem have recognized that, despite the occasional indiscriminate use of the term "not frivolous," an application for a certificate of probable cause should contain a higher showing of merit than should a petition for in forma pauperis st...