Mason v. Smith
| Decision Date | 04 June 1945 |
| Citation | 148 F.2d 894 |
| Parties | MASON v. SMITH, Superintendent of Penitentiary. Undocketed. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Ben F. Mason, in pro. per., for petitioner.
No other appearances.
Leave to File Petition for Writ of Certiorari Denied June 4, 1945. See 65 S.Ct. 1407.
The petitioner presents to me as Senior Circuit Judge, an application for certificate of probable cause under the provisions of 28 U.S.C.A. § 466, which requires such a certificate as a basis for an appeal without which the court of appeals has no jurisdiction of the appeal. Schenk v. Plummer, 9 Cir., 113 F.2d 726. A similar application was made for a certificate to the United States District Court for the Eastern District of Washington which had made the order denying the petitioner a writ of habeas corpus from which the petitioner sought to take an appeal. That court had power to grant the certificate. 28 U.S.C.A. § 466, supra. The application for a certificate was denied for the reason that the same question involved in the case had already been adjudicated by this court in a prior appeal by petitioner from a similar, if not identical, decision on his prior application for a writ of habeas corpus. Mason v. Webb, 9 Cir., 142 F.2d 584. This court there held that the petitioner Mason had not exhausted his state remedies and suggested that before making a new application in the federal courts he should seek recourse in the courts of the state of Washington. Petitioner is imprisoned in the state penitentiary of the state of Washington at Walla Walla, Washington, under a judgment of conviction and sentence in a state court. The statute, 28 U.S.C.A. § 466, in such a case denies to petitioners for writ of habeas corpus, the right of appeal from final decision thereon unless a certificate of probable cause is made either by the district court where the judgment sought to be appealed from is rendered, or from a Circuit Judge of the circuit wherein the order appealed from was made.
The petition contains more than 51 typewritten pages and is accompanied by a brief of 14 pages, all prepared by the petitioner, who appears on his own behalf. The petitioner admits that the present petition is substantially identical with the one heretofore presented to the court in the appeal above mentioned.
He claims that a recent decision of the Court of Appeals for the Seventh Circuit, Potter v....
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Barton v. Smith
...F.2d 417, 418; Hogue v. Duffy, 9 Cir., 124 F.2d 864, 865, certiorari denied, 316 U.S. 675, 62 S.Ct. 1044, 86 L.Ed. 1749; Mason v. Smith, 9 Cir., 148 F.2d 894, 895, motion for leave to file petition for writ of certiorari denied, 325 U.S. 839, 65 S.Ct. 1407, 89 L.Ed. 1965. See also Potter v.......
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Mason v. Smith, 11552.
...case before this court. See Mason v. Webb, 9 Cir., 142 F.2d 584, certiorari denied, 323 U.S. 747, 65 S.Ct. 58, 89 L.Ed. 598; Mason v. Smith, 9 Cir., 148 F.2d 894, leave to file petition for certiorari denied, 325 U.S. 839, 65 S.Ct. 1407, 89 L. Ed. 1965. One phase of his long legal battle fo......