Glynn v. Donnelly

Decision Date11 October 1973
Docket NumberMisc. No. 73-8046.
Citation485 F.2d 692
PartiesFrancis T. GLYNN, Appellant, v. Robert H. DONNELLY, Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

James W. Kelleher, Boston, Mass., for petitioner upon application and memorandum in support thereof.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

COFFIN, Chief Judge.

Petitioner, Francis T. Glynn, was convicted in Massachusetts Superior Court of the crimes of corruptly giving, offering and promising a bribe to certain public officials of the Commonwealth, and of conspiring to give, offer and promise a bride to these officials. His conviction was affirmed by the Supreme Judicial Court of Massachusetts, Commonwealth v. Beneficial Finance Co., 1971 Mass. Advance Sheets 1367, 275 N.E.2d 33 (1971), cert. denied, 407 U.S. 914, 92 S.Ct. 2433, 32 L.Ed.2d 689 (1972). Petitioner then sought a writ of habeas corpus from the federal district court and also sought bail pending a hearing on the merits. Upon denial of bail by the district court petitioner appealed to this court, which affirmed the lower court's decision, Glynn v. Donnelly, 470 F.2d 95 (1st Cir. 1972). Thereafter the district court denied the petition for the writ and also denied the application for a certificate of probable cause for appeal under 28 U.S.C. § 2253. Petitioner now applies to this court for the certificate.

The substantive issue which is pressed upon us relates to certain exparte communications with the trial judge on the part of the prosecution which petitioner claims denied him due process of law, relying in particular on our decision in Haller v. Robbins, 409 F.2d 857 (1st Cir. 1969). The communications in question were a number of applications for certificates under the Uniform Law to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, Mass.G.L. c. 233, §§ 13A-13D. We agree with the district court that there is no basis to petitioner's constitutional claim and therefore deny the petition for a certificate of probable cause.

The district court, in denying the certificate, found the appeal frivolous within the meaning of Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962), which dealt with the test of "good faith" applicable to appeals in forma pauperis. Arguably, a petitioner seeking a certificate from a court of appeals shoulders a somewhat heavier burden. In Ellis v. State of Maine, 448 F.2d 1325, 1327 (1st Cir. 1971), we said, "we do not propose to overrule a district court's denial of a certificate of probable cause for appeal, after ruling against petitioner, unless there is affirmatively demonstrated to us that such cause in fact exists."

There would appear to be differences among various courts in the articulation of a standard for review in this area, some using the "non-frivolous" standard of Coppedge and others using variations of a "substantiality of issues" test. See, for recognition of inconsistency in formulations, 43 F.R.D. 343, 351-354 (1967), 50 F.R.D. 153, 176 (1970).

Here, whether there be a significant difference or not in the standard of review of denials of forma pauperis appeals and certificates of probable cause, the district court applied the standard favoring the petitioner. And we are obliged to give "weighty consideration" to that decision. Nowakowski v. Maroney, 386 U.S. 542, 543, 87 S.Ct. 1197, 18 L.Ed.2d 282 (1967).

In our earlier involvement in this case, on the issue of granting bail pending hearing on the petition for habeas corpus in the district court, Glynn v. Donnelly, 470 F.2d 95 (1st Cir. 1972), we held open the issue of substantiality, saying only that petitioner's case was not "a clear one" and that we saw a significant difference between a prosecutor's making ex parte pre-sentencing remarks to the sentencing judge in Haller v. Robbins, 409 F.2d 857 (1st Cir. 1969), and "the seemingly routine processing under the Uniform Law to Secure the Attendance of Witnesses From Without a State in Criminal Proceedings, Mass.G. L. c. 233, §§ 13A-13D of applications to secure witnesses from without the jurisdiction." We now hold that the district court did not err in concluding that the appeal was frivolous.

We recognize that the issue was not frivolous in the sense that a court could quickly conclude that it was...

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9 cases
  • Jones v. Hess, 80-2214
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 1 Junio 1982
    ...S.Ct. 1355, 25 L.Ed.2d 648; Code of Judicial Conduct for United States Judges, Canons 3(A)(4) and 3(C)(1)(a). 4 But see, Glynn v. Donnelly, 485 F.2d 692, 693 (1st Cir.) (ex parte applications for certificates under the Uniform Law to Secure the Attendance of Witnesses from Without a State i......
  • In re Parr
    • United States
    • U.S. District Court — Eastern District of New York
    • 31 Agosto 1981
    ...can reasonably be questioned. It is well established that ex parte communications are presumptively improper. Glynn v. Donnelly, 485 F.2d 692 (1st Cir. 1973), cert. denied, 416 U.S. 957, 94 S.Ct. 1970, 40 L.Ed.2d 307 (1974). However, disqualification under section 455(a) is mandated only wh......
  • Bradley v. Milliken
    • United States
    • U.S. District Court — Western District of Michigan
    • 28 Febrero 1977
    ...seems to us to expand the policy of insuring the purity of the court to the point of eliminating faith in it. Glynn v. Donnelly, 485 F.2d 692, 694 (1st Cir. 1973). In considering whether the record gives the appearance that, as a result of our meeting of August 15, 1975, we have prejudged t......
  • People v. McCartney
    • United States
    • New York Court of Appeals Court of Appeals
    • 24 Febrero 1976
    ...it constitutes a violation of due process and a denial of a fair trial (Glynn v. Donnelly, D.C., 360 F.Supp. 214, petition den., 1 Cir., 485 F.2d 692, cert. den., 416 U.S. 957, 94 S.Ct. 1970, 40 L.Ed.2d 307). It is important to note, therefore, that we are not here faced with a question of ......
  • Request a trial to view additional results
1 books & journal articles
  • An Unholy Alliance: the Ex Parte Relationship Between the Judge and the Prosecutor
    • United States
    • University of Nebraska - Lincoln Nebraska Law Review No. 79, 2021
    • Invalid date
    ...v. Dubrofsky,581 F.2d 208 (9th Cir. 1978)(finding that ex parte communication necessary to protect the investigation); Glynn v. Donnelly,485 F.2d 692 (1st Cir. 1973)(discussing ex parte conference to assist in securing a witness); see generallyFlowers, Code of Their Own, supra note 11 (disc......

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