United States v. Heinze, Misc. No. 698.
| Decision Date | 19 November 1957 |
| Docket Number | Misc. No. 698. |
| Parties | UNITED STATES of America ex rel. SULLIVAN, Petitioner, v. Robert A. HEINZE, Warden, Folsom Prison, et al., Respondents. |
| Court | U.S. Court of Appeals — Ninth Circuit |
William B. Sullivan in pro. per.
Petitioner, a prisoner held under process of the State Court of California, files with this court an appeal from a denial of a writ of habeas corpus, and a "motion for a certificate of probable cause." Accompanying are copies of a "Petition for Writ of Habeas Corpus and/or Injunction" and an "addendum" thereto. All these documents were similarly filed with the District Court of the Northern District of California, Northern Division.
The District Court denied the petition for habeas corpus and, considering the "addendum" as a petition for rehearing, denied that also.
The petition for a certificate of probable cause, a prerequisite to appeal from a denial of habeas corpus in this case (28 U.S.C.A. § 2253), fails to disclose application to the trial court for such a certificate. Absent the most unusual circumstances, such failure is fatal to relief in this Court. See In re Application of Burwell, 1956, 350 U.S. 521, 76 S.Ct. 539, 100 L.Ed. 666; Joyner v. Parkinson, 7 Cir., 1955, 227 F.2d 505; Brite v. California, 9 Cir., 1949, 178 F. 2d 925; Rule 15(5) of the Rules of the United States Court of Appeals for the Ninth Circuit, 28 U.S.C.A. However, since the filing of the original documents, petitioner has belatedly filed copies of an order of the District Court, dated November 4th, 1957 (denying the application for a certificate of probable cause on two grounds, first, that the appeal was without merit, and second that the appeal was not taken in good faith), and a Brief in support of such motion. We will, in the interests of petitioner, consider the order of the District Court as having been timely filed with the original petition.
Petitioner has filed a motion to be allowed to proceed in forma pauperis. Since this it not a proceeding on the merits of petitioner's trial, or conviction, there is no record to be printed. All the documents are before this court. The filing fee has been paid. There being no need for it, the petition for leave to proceed in forma pauperis is denied.
The trial court has refused to grant a certificate of probable cause, and given his reasons therefor. While I am not bound by the decision of the court below, I am duty bound to give it weighty...
To continue reading
Request your trial
-
Santiago Salgado v. Garcia
...In re Burwell, 350 U.S. 521, 522, 76 S.Ct. 539, 100 L.Ed. 666 (1956) (per curiam) (emphasis added); see also United States ex rel. Sullivan v. Heinze, 250 F.2d 427 (9th Cir.1957) (post-Burwell decision denying CPC via one-judge order); Burgess v. Warden, 284 F.2d 486, 488 (4th Cir.1960) (po......
-
United States v. Cahn
...applications (Johnson v. Walker, 317 F.2d 418 (5 Cir. 1963); Hamilton v. Buchkoe, 283 F.2d 816 (6 Cir. 1960); United States ex rel. Sullivan v. Heinze, 250 F.2d 427 (9 Cir. 1957), cert. denied, 356 U.S. 943, 78 S.Ct. 789, 2 L.Ed.2d 818; People of State of New York ex rel. Epps v. Nenna, 214......
-
Krum v. Thomas
...deny the certificate of probable cause if the petitioner fails to show exhaustion of remedies in state courts. U.S. ex rel. Sullivan v. Heinze, 250 F.2d 427 (9th Cir. 1957), cert. denied, 356 U.S. 943, 78 S.Ct. 789, 2 L.Ed.2d 818 (1958); Ferrario v. State of Nebraska, 352 F.2d 620 (8th Cir.......
-
Gordon v. Willis
...state remedies),2 the certificate properly is denied. See, e. g., Vera v. Beto, 332 F.Supp. 1197 (S.D.Tex.1971); Sullivan v. Heinze, 250 F.2d 427 (9th Cir. 1957). Of course, in the case of a petitioner proceeding pro se, the Court does not expect to see arguments formulated in such a way th......