Ragan v. Cox, 6811.

Citation305 F.2d 58
Decision Date21 June 1962
Docket NumberNo. 6811.,6811.
PartiesJack V. K. RAGAN, Appellant, v. Colonel Weldon W. COX, Commandant, United States Disciplinary Barracks, Leavenworth, Kansas, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Calvin L. Rampton of Pugsley, Hayes & Rampton, Salt Lake City, Utah, for appellant.

Alan G. Marer, Atty., Dept. of Justice, and Frank O. House, Major, United States Air Force (Burke Marshall, Asst. Atty. Gen., Newell George, U. S. Atty., and Harold H. Greene, Atty., Dept. of Justice, were with them on the brief), for appellee.

Before PHILLIPS, PICKETT, and BREITENSTEIN, Circuit Judges.

BREITENSTEIN, Circuit Judge.

Appellant Ragan presented to the United States District Court for the District of Kansas two petitions for habeas corpus, each of which was accompanied by a motion and affidavit for leave to file in forma pauperis under 28 U.S.C. § 1915(a). The first petition, identified on the docket of the lower court as No. 3230 H.C., alleged that Ragan was held unlawfully in the United States Disciplinary Barracks at Leavenworth, Kansas, because two military court-martial sentences imposed against him ran concurrently rather than consecutively and had been completely served. The court, without stating any reasons, denied leave to file in forma pauperis.

The second petition, identified as No. 3236 H.C., alleged that Ragan had received a military court-martial sentence of six years and a dishonorable discharge; that after such discharge he had received a second military court-martial sentence of 10 years; that the second sentence was void as the court-martial lacked jurisdiction over him because of the discharge; and that the first sentence had been completely served. Again, the court, without stating any reasons, denied leave to file in forma pauperis.

Subsequently, in each case Ragan filed a motion, with supporting affidavit for leave to appeal in forma pauperis. These were each denied without any reasons being stated and without any certificate that the appeal was not taken in good faith. Ragan then applied to the Court of Appeals in each case for leave to appeal in forma pauperis. The two cases were consolidated as Docket No. 6811. We granted leave "to proceed in this court in forma pauperis" and ordered the certification of the original files to this court. After examination of those files we denied "leave to proceed further in forma pauperis" and dismissed the appeals. On certiorari, the Supreme Court vacated our order "insofar as it denies petitioner leave to proceed in forma pauperis" and remanded the cause for further proceedings.

The only matter before us is the validity of the trial court orders denying leave to file in forma pauperis. These are appealable orders.1 In Ellis v. United States, 356 U.S. 674, 675, 78 S.Ct. 974, 2 L.Ed.2d 1060, the Supreme Court reversed a denial of leave to appeal in forma pauperis saying:

"Unless the issues raised are so frivolous that the appeal would be dismissed in the case of a non-indigent litigant, Fed.Rule Crim. Proc. 39(a) 18 U.S.C.A., the request of an indigent for leave to appeal in forma pauperis must be allowed."

This rule was reaffirmed in Coppedge v. United States, 369 U.S. 438, 448, 82 S.Ct. 917, 8 L.Ed.2d 21, and was amplified by the statement that:

"It is not the burden of the petitioner to show that his appeal has merit, in the sense that he is bound, or even likely, to prevail ultimately. He is
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  • Vigil v. Doe
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • July 31, 2019
    ...frivolous or malicious, it may dismiss the case[.] Menefee v. Werholtz, 368 Fed. App'x 879, 884 (10th Cir. 2010) (citing Ragan v. Cox, 305 F.2d 58, 60 (10th Cir. 1962) ). "[A]n application to proceed in forma pauperis should be evaluated in light of the applicant's present financial status.......
  • Sherrell v. Univ. of N.M.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • November 13, 2018
    ...that the allegations of poverty are untrue or that the action is frivolous or malicious, it may dismiss the case .... Ragan v. Cox, 305 F.2d 58, 60 (10th Cir. 1962). "[A]n application to proceed in forma pauperis should be evaluated in light of the applicant's present financial status." Sch......
  • Carter v. U.S. Dep't of Def.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • February 28, 2017
    ...or malicious, it may dismiss the case . . . .Menefee v. Werholtz, 368 Fed. App'x 879, 884 (10th Cir. 2010)(citing Ragan v. Cox, 305 F.2d 58, 60 (10th Cir. 1962)). "The statute [allowing a litigant to proceed in forma pauperis] was intended for the benefit of those too poor to pay or give se......
  • Garcia v. Cole
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • September 20, 2019
    ...is frivolous or malicious, it may dismiss the case[.] Menefee v. Werholtz, 368 Fed. App'x. 879, 884 (10th Cir. 2010) (citing Ragan v. Cox, 305 F.2d 58, 60 (10th Cir. 1962) ). "[A]n application to proceed in forma pauperis should be evaluated in light of the applicant's present financial sta......
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2 provisions
  • 28 APPENDIX U.S.C. § 24 Proceeding In Forma Pauperis
    • United States
    • US Code 2020 Edition Title 28 Appendix Federal Rules of Appellate Procedure Title VI. Habeas Corpus; Proceedings In Forma Pauperis
    • January 1, 2020
    ...third sentence has no counterpart in present circuit rules, but it has been imposed by decision in at least two circuits. Ragan v. Cox, 305 F.2d 58 (10th Cir., 1962); United States ex rel. Breedlove v. Dowd, 269 F.2d 693 (7th Cir., The second paragraph permits one whose indigency has been p......
  • 28 APPENDIX U.S.C. § 24 Proceeding In Forma Pauperis
    • United States
    • US Code 2022 Edition Title 28 Appendix Federal Rules of Appellate Procedure
    • January 1, 2022
    ...third sentence has no counterpart in present circuit rules, but it has been imposed by decision in at least two circuits. Ragan v. Cox, 305 F.2d 58 (10th Cir., 1962); United States ex rel. Breedlove v. Dowd, 269 F.2d 693 (7th Cir., The second paragraph permits one whose indigency has been p......

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