Johnson v. Hunter
| Decision Date | 26 August 1944 |
| Parties | JOHNSON v. HUNTER, Warden. |
| Court | U.S. Court of Appeals — Tenth Circuit |
No attorneys.
Before PHILLIPS and MURRAH, Circuit Judges, and RICE, District Judge.
Petitioner seeks permission of this court to appeal in forma pauperis from an order of the United States District Court, State of Kansas, denying him the right to file a petition for a writ of habeas corpus and to proceed therein without payment of costs. Petitioner attempted to proceed in forma pauperis in the District Court under the provisions of 28 U.S.C.A. § 832, which provides that a poor person may commence his action "upon the order of the court," and that he may appeal to the Circuit Court of Appeals "unless the trial court shall certify in writing that in the opinion of the court such appeal or writ of error is not taken in good faith." He was denied the right to proceed in forma pauperis in the District Court on the ground that his petition was without merit and that he should not be allowed to proceed at the expense of the government. In due time the petitioner presented to the District Court his Application for Leave to Appeal in Forma Pauperis. The District Court, after reviewing the files, denied the application and certified that the proposed appeal "is not taken in good faith, is frivolous, and is without merit."
Attached to the Petition for Leave to Appeal filed herein is a copy of the original Petition for Writ of Habeas Corpus and copies of the orders entered by the District Court. Both orders were based by the District Court solely upon the proposition that the Petition for Writ of Habeas Corpus fails to disclose that petitioner has a meritorious cause and that it presented no issue of fact upon which the petitioner is entitled to a hearing under the rule announced in Waley v. Johnston, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302.
A District Court is not required to permit a poor person to file a petition without payment of costs unless there is a showing of merit. Whittle v. St. Louis & San Francisco R. Co., C.C., 104 F. 286; Kinney v. Plymouth Rock Squab Co., 236 U.S. 43, 35 S.Ct. 236, 59 L.Ed. 457.
An appeal from a final decision of District Court is a matter of right, but the right to appeal in forma pauperis is regulated by special statute, 28 U.S.C.A. § 832 Holiday v. Johnston, Warden, 9 Cir., 123 F.2d 867, certiorari denied Ex parte Holiday, 316 U.S. 660, 62 S.Ct. 940, 86 L.Ed. 1737.
It may be assumed for the purposes of this case that 28 U.S.C.A. § 832 does not foreclose all appellate review in forma pauperis when the trial court has certified its opinion that the appeal is not taken in good faith. However, the certificate of the trial court in such cases will be given effect at least to the extent of being accepted here as controlling in the absence of some showing that the certificate is made without warrant or not in good faith. Cf. Waterman v. McMillan et al., 77 U.S.App.D.C. 310, 135 F.2d 807; Spruill v. Temple Baptist Church, 78 U.S.App.D.C. 324, 141 F.2d 137; Wells v. United States, 318 U.S. 257 63 S.Ct. 582, 87 L.Ed. 746.
An examination of the papers attached to the Petition for Leave to Appeal in Forma Pauperis discloses that the certificate of the trial court was not made without warrant and that it was made in good faith. According to the Petition for Writ of Habeas Corpus filed in the District Court the petitioner was convicted by a jury composed of eleven white men and one negro in the United States District Court for the Western District of Kentucky and sentenced on the 24th day of November, 1942, to a term of five years on a charge of violation of the Mann Act, Title 18, Section 398, U.S.C.A. Of the eleven separate paragraphs contained in the original Petition for Writ of Habeas Corpus, only three deserve consideration. In the third paragraph it is alleged that "the petitioner's defense witnesses were threatened and intimidated and not permitted to appear at petitioner's trial." In the fourth paragraph it is alleged that "one defense witness was ordered to leave town (Morganfield, Kentucky), and was ordered not to appear as a defense witness." In the sixth paragraph it is alleged that "the...
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