Smith v. Johnston

• Decision Date: 15 January 1940
• Citation: 109 F.2d 152
• Parties: SMITH v. JOHNSTON, Warden, and four other cases.
• Court: U.S. Court of Appeals — Ninth Circuit

109 F.2d 152 (1940)

SMITH v. JOHNSTON, Warden, and four other cases.

Circuit Court of Appeals, Ninth Circuit.

January 15, 1940.

COPYRIGHT MATERIAL OMITTED

Before WILBUR, GARRECHT, and DENMAN, Circuit Judges.

WILBUR, Circuit Judge.

Application has been filed in each of the above entitled cases for an order authorizing the prosecution of an appeal in forma pauperis from an order of the District Court denying relief upon a petition for writ of habeas corpus filed therein by the petitioner.

In each case the petitioner is in custody because of a conviction for a violation of a statute of the United States. Hence, the provisions of 28 U.S.C.A. § 466 requiring a certificate of probable cause in an appeal where the petitioner is in custody for a violation of a state law are not applicable.

The right to proceed in forma pauperis is regulated by statute. 28 U.S.C.A. § 832. In view of the number of applications made in this circuit for writs of habeas corpus based upon an alleged violation of the 6th amendment to the federal Constitution, U.S.C.A., guaranteeing a defendant the right to have the assistance of counsel in a criminal prosecution, and the recent decision of the Supreme Court interpreting that amendment (Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461), and particularly in view of the newly adopted rules of civil procedure applicable in the United States District Courts promulgated by the Supreme Court under authority of Congress (28 U.S.C.A. following section 723c), effective September 16, 1938, it is desirable to indicate more clearly the proper practice in applying for leave to proceed in forma pauperis in such matters.

The new rules are expressly made applicable to appeals in habeas corpus proceedings. Rule 81 (a) (2). Prior to the adoption of the new rules it was customary to apply either to the District Court of the United States or to the United States Circuit Court of Appeals for leave to proceed on appeal in forma pauperis from a final order in a habeas corpus proceeding. Preferably, the application was made to the District Court of the United States. Formerly, inasmuch as the petition for leave to appeal might have been presented either to a Judge of the District Court of the United States from which the appeal was to be taken, or to a Judge of the United States Circuit Court of Appeals (28 U.S.C.A. § 867; 28 U.S.C.A. § 228), the petition for leave to appeal in forma pauperis might very well accompany, or be incorporated in, a petition for leave to appeal, as was usually done. If granted by either court, the papers were filed. Under the new rules, however, the appeal is not taken by filing a petition asking leave to appeal, but "by filing with the district court a notice of appeal". Rule 73, supra. The law requires payment of a fee of $5 to the Clerk of the District Court for filing such notice. 28 U. S.C.A. § 553;¹ 43 Stat. 856, 857, ch. 204, § 6. The Clerk of the District Court is therefore justified in refusing to file the notice of appeal until his fee has been paid, or until an order of court, permitting the appellant to proceed in forma pauperis, is made. The statute (28 U.S.C.A. § 832, supra) contemplates that leave to proceed in forma pauperis should be denied to any applicant therefor unless there is a showing by the applicant of merit in the appeal he desires to prosecute or defend. This interpretation of the statute has been uniform throughout its existence. Kinney v. Plymouth Rock Squab Co., 236 U.S. 43, 35 S.Ct. 236, 59 L.Ed. 457; Brinkley v. Louisville & N. R. Co., C.C., 95 F. 345; Whittle v. St. Louis & S. F. Ry. Co., C.C., 104 F. 286; Johnson v. Nickoloff, 9 Cir., 52 F.2d 1074; In re Bruning, 9 Cir., 68 F.2d 728; Boggan v. Provident Life & Accident Insurance Co., 5 Cir., 79 F.2d 721; De Groot v. United States, 9 Cir., 88 F.2d 624. Furthermore, the statute provides in effect that leave to proceed in forma pauperis on an appeal or writ of error cannot be given where the trial court certifies in writing "that in the opinion of the court such appeal or writ of error is not taken in good faith". In re Wragg, 5 Cir., 95 F.2d 252, certiorari denied, 305 U.S. 596, 59 S.Ct. 80, 83 L.Ed. 377; Stanley v. Swope, 9 Cir., 99 F.2d 308; Brown v. Johnston, 9 Cir., 99 F. 2d 760. Such a certificate, if made, would appropriately be made at the time the trial court passes upon the application for leave to appeal in forma pauperis.

If the payment to the Clerk of the District Court of the $5 fee for filing the notice of appeal is to be avoided, the application to proceed in forma pauperis on the appeal should be filed with the Clerk of the District Court and the Court's order upon the application procured, prior to the filing of the notice. We construe 28 U.S. C.A. § 832 with § 549 as not requiring a fee for filing the application. Cf. Hall v. Johnston, D.C., 30 F.Supp. 102, filed in the Northern District of California, Southern Division, January 13, 1940.

The proper procedure here is for the pauper promptly to cause to be delivered to the judge of the court who heard the matter or, in his absence, some other judge of the court, if there be such judge, the application for leave to proceed in forma pauperis with the accompanying affidavit in order that any delay of the court in granting the application may not prevent such pauper from the timely filing of his notice of appeal. The Clerk should promptly call the Court's attention to the application. Furthermore, the application in the first instance should be made to the District Court to enable that court with its full and immediate knowledge of the facts to determine whether the appeal has been taken in good faith and to consider whether or not it should make a certificate that the appeal is not taken in good faith.

Since by the terms of the statute (28 U.S.C.A. § 832) it is obvious that the pauper's application is to be entertained by a court prior to the institution of the suit or proceeding in which he seeks to be freed of costs and fees, it follows that the circuit court of appeals, in which court the payment of costs and fees otherwise would be required on appeal, also has the power to entertain the application prior to the filing of the notice of appeal in the District Court. Failure of action by the District Court on the application there made within a reasonable time then warrants its entertainment by the Circuit Court of Appeals.

If the appeal has been perfected by filing notice and paying costs in the District Court without such an application, and the appellant be a pauper seeking to continue its prosecution, the Circuit Court of Appeals can entertain the application in the first instance, but the petitioner for leave to proceed in forma pauperis should show that the District Court has been given an opportunity to certify as to the petitioner's good faith in taking the appeal.

We hold, then, that application to proceed in forma pauperis on appeal must be made in the first instance to the United States District Court which court should certify in the order granting or denying the application whether there is merit in the appeal and whether or not the appeal is taken in good faith. If denied for any reason other than a lack of good faith, application can then be made to the Circuit Court of Appeals. However, in such a case, the petitioner should allege that he has applied to the District Court for leave to proceed on appeal in forma pauperis and that the District Court has denied the application and has not certified that the appeal is not taken in good faith.

Clint Smith, Appellant and Petitioner, v. James A. Johnston, etc., Appellee and Respondent.

This application for leave to appeal in forma pauperis does not show...