Jones v. Warden, Louisiana State Penitentiary
Decision Date | 25 October 1968 |
Docket Number | No. 25869.,25869. |
Citation | 402 F.2d 776 |
Parties | Arthur W. JONES, Appellant, v. WARDEN, LOUISIANA STATE PENITENTIARY, Appellee. |
Court | U.S. Court of Appeals — Fifth Circuit |
Arthur W. Jones, pro se.
Charles W. Richard, Asst. Dist. Atty., Frank T. Salter, Jr., Dist. Atty., Lake Charles, La., for appellee.
Before RIVES and DYER, Circuit Judges, and MEHRTENS, District Judge.
Arthur W. Jones is now before this Court on a reluctantly granted1 certificate of probable cause, 28 U.S.C.A. § 2253, and leave to appeal in forma pauperis, 28 U.S.C.A. § 1915(a). The district court had previously denied Jones' writ of habeas corpus, reasoning that See Ray v. United States, 5 Cir. 1967, 374 F.2d 638. Cf. Wong Sun v. United States, 1963, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed. 2d 441.
While we do not believe that a prisoner is entitled to a certificate of probable cause as a matter of right, Jones v. Attorney General of the United States, 8 Cir. 1960, 278 F.2d 699, 701, the district court correctly resolved its doubts in favor of the petitioner since issuance is ordinarily a jurisdictional prerequisite for appeal, Gay v. Graham, 10 Cir. 1959, 269 F.2d 482, 487, unless the appellate court itself, or a judge thereof, issues a certificate notwithstanding denial below. Dixon v. State of Florida, 5 Cir. 1968, 388 F.2d 424.
On the other hand, after full review of the appellant's contentions, we agree with the district court that his claim that he was convicted through the use of illegally seized evidence lacks foundation in fact and is without merit. Habeas corpus was properly denied. Rowan v. State of Louisiana, 5 Cir. 1966, 356 F.2d 936; Norris v. Sanford, 5 Cir. 1945, 147 F.2d 943.
Affirmed.
1 In its order of February 1, 1968, the District Court for the Western District of Louisiana, Hunter, J., presiding, stated:
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