United States v. Farley

Citation238 F.2d 575
PartiesUNITED STATES of America, Appellee, v. Charles Leo FARLEY, Defendant-Appellant.
Decision Date09 November 1956
CourtU.S. Court of Appeals — Second Circuit

Before FRANK, MEDINA, and HINCKS, Circuit Judges.

PER CURIAM.

The appellant's motion to the trial court for leave to appeal forma pauperis was denied on July 30, 1956 by a written memorandum of the trial judge who therein certified that the appellant had failed "to show merit" in his appeal. This was not sufficient to bring the certificate within 28 U.S.C.A. § 1915 (a), par. 2, which provides: "An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith." (Emphasis supplied.)

Generally an application for leave to appeal in forma pauperis will have sufficient substance to warrant consideration only if, in addition to an adequate showing of indigence and of citizenship, it identifies with reasonable particularity the claimed errors which will be the basis for the appeal. If these requirements are satisfied, and if on consideration the trial judge is conscientiously "convinced that there is no substantial question for review and that an appeal will be futile," Higgins v. Steele, 8 Cir., 195 F.2d 366, 369, or if he is convinced that there is no "reasonable basis" for the claims of alleged error, Wheeler v. Reid, 84 U.S.App.D.C. 180, 175 F.2d 829, it is the duty of the trial judge, albeit not a pleasant duty, to certify that the appeal is not taken in good faith. If all other requisites are satisfied and the trial judge in good conscience cannot certify bad faith, he should grant the application, at least unless some extraordinary feature warrants a denial.

An intermediate situation, however, may arise in which the applicant suggests claims of error stated only in such generality as to preclude an intelligent ruling. When this occurs, the trial judge may properly deny the application but withhold a certificate of bad faith which will necessarily circumscribe the applicant's rights. Such a disposition leaves to the applicant a right within a reasonable period to supplement his application to the trial court by further particulars. We think the instant case is one falling into this intermediate situation. The application as presented to the trial court contained some claims of error so lacking in particularity that the judge could rightly deny the application and yet withhold a certificate of bad faith.

The effect of the disposition below is to leave this court with untrammeled jurisdiction under § 1915(a), par. 1, in its discretion to deal with the motion now presented. Wheeler v. Reid, supra. And doubtless in the exercise of our jurisdiction we may give appropriate consideration to the disposition of the application below although, of course, we are not concluded thereby. This motion, however, contains several claims of error not raised in the application below. They are as follows: (1) The district attorney was allowed "to accuse the defendant in open court of a crime committed months after the charge in the indictment"; (2) the admission into evidence of "clothes not belonging to, nor connected to the defendant"; (3) the refusal to allow the defendant "to try on for size clothes allegedly belonging to the robber, before the jury." We hold that we should not attempt to pass upon these claims for their sufficiency to warrant allowance of an appeal in forma pauperis until an opportunity has been afforded to the trial court to decide whether they are pressed in good faith. Waterman v. McMillan, 77 U.S.App.D.C. 310, 135 F.2d 807, certiorari denied 322 U.S. 749, 64 S.Ct. 1160, 88 L.Ed. 1599, rehearing denied 323 U.S. 812, 65 S.Ct. 30, 89 L.Ed. 647; Gerringer v. United States, 93 U.S.App.D.C. 403, 213 F.2d 346; Kyle v. United States, 9 Cir., 199 F.2d 756. Accordingly we now deny the pending motion, but with leave to the appellant within thirty...

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25 cases
  • Coppedge v. United States
    • United States
    • United States Supreme Court
    • 30 April 1962
    ...Farley: Indicted (December 1955), tried (May 1956), application for leave to appeal in forma pauperis remanded to District Court, 238 F.2d 575 (C.A.2d Cir.1956), appeal in forma pauperis denied, 242 F.2d 338, vacated, 354 U.S. 521, 77 S.Ct. 1371, 1 L.Ed.2d 1529 (1957), remanded to District ......
  • Griffin v. Doe
    • United States
    • U.S. District Court — Northern District of New York
    • 23 December 2014
    ...basis for the claims of alleged error,” the court must certify that the appeal is not taken in good faith. United States v. Farley, 238 F.2d 575, 576 (2d Cir.1956) (internal citations and quotation marks omitted). In light of the fact that the limitations period for any conceivable claim by......
  • United States v. Herold
    • United States
    • U.S. District Court — Northern District of New York
    • 31 December 1962
    ...the State of New York if the federal system compelled higher standards or different tests to decide the same problem. (United States v. Farley, 2 Cir., 238 F.2d 575, 576; Coppedge v. United States, 369 U.S. 438, 443-444, 82 S.Ct. 917, 8 L.Ed. 2d 21; 28 U.S.C.A. § 1915(a), The petition is de......
  • United States v. Johnson
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 9 November 1956
    ...the appellate court, serious trial errors, "with reasonable particularity." However, according to my colleagues' opinion in United States v. Farley, 238 F.2d 575, 576, also decided today the defendant in such circumstances would be in this position: The appellate court would allow the defen......
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