United States v. Keeper of Montgomery County Prison, 10974.
| Decision Date | 27 February 1953 |
| Docket Number | No. 10974.,10974. |
| Citation | 202 F.2d 267 |
| Parties | UNITED STATES ex rel. CAREY v. KEEPER OF MONTGOMERY COUNTY PRISON et al. |
| Court | U.S. Court of Appeals — Third Circuit |
Harry R. Back, Philadelphia, Pa., for appellant.
Frank P. Lawley, Jr., Asst. Deputy Atty. Gen. of Pa., for appellee.
Before BIGGS, Chief Judge, and GOODRICH and KALODNER, Circuit Judges.
On December 1, 1952, an order of the court below was filed refusing to issue a writ of habeas corpus in the relator's, Carey's, favor, he having been convicted of a capital crime by the Court of Oyer and Terminer and General Jail Delivery of Montgomery County, Pennsylvania. The relator was sentenced to death and is presently in jail awaiting execution. On December 29, 1952, application was made to Chief Judge Kirkpatrick of the court below for a certificate of probable cause and for stay of execution. This application was denied on the same day. On December 30, 1952, a notice of appeal was filed in the court below and on January 6, 1953, an application for a certificate of probable cause and for a stay of execution was made to, and was denied by Judge Maris of this court. On the following day, January 7, 1953, an application for a certificate of probable cause was made to the present writer and to Judge GOODRICH. A certificate of probable cause issued on that date. This court stayed Carey's execution pending the disposition of the case on appeal. On January 20, 1953, a motion to dismiss the appeal was filed by the State of Pennsylvania. The motion came on for argument in this court on February 2, 1953.
The ground for the motion is based on the failure to comply with Section 2253, Title 28, U.S.C., which in pertinent part reads as follows: "An appeal may not be taken to the court of appeals from the final order in a habeas corpus proceeding where the detention complained of arises out of process issued by a State court, unless the justice or judge who rendered the order or a circuit justice or judge issues a certificate of probable cause." Rule 73, FRCP, 28 U.S.C., provides that an appeal must be taken within 30 days.
We have found but two cases in point, viz., United States ex rel. Kreuter v. Baldwin, 7 Cir., 49 F.2d 262, and Ex parte Farrell, 1 Cir., 189 F.2d 540. Both authorities hold that the certificate of probable cause is a necessity in order to confer jurisdiction upon the Court of Appeals from the final order in a habeas corpus...
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Strand v. Schmittroth
...4 Boyden v. Webb, 9 Cir., 1953, 208 F.2d 201; Ex parte Farrell, 1 Cir., 1951, 189 F.2d 540; United States ex rel. Carey v. Keeper of Montgomery County Prison, 3 Cir., 1953, 202 F.2d 267, certiorari denied Commonwealth of Pennsylvania ex rel. Carey v. Same, 1953, 345 U.S. 930, 73 S.Ct. 793, ......
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Fitzsimmons v. Yeager
...the denial of the petition for habeas corpus, a formal notice of appeal in the district court. In United States ex rel. Carey v. Keeper of Montgomery County Prison, 202 F.2d 267 (3 Cir.), cert. denied, Commonwealth of Pennsylvania ex rel. Carey v. Keeper of Montgomery County Prison, 345 U.S......
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...233 F.2d 598, C.A.9, (the opinion in this case cited by appellee was withdrawn, 251 F.2d 590); United States ex rel. Carey v. Keeper of Montgomery County Prison, 202 F.2d 267, C.A.3, cert. denied 345 U.S. 930, 73 S.Ct. 793, 97 L. Ed. 1360; United States ex rel. Kreuter v. Baldwin, 49 F.2d 2......
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...for certificate of probable cause, and lacking that we must dismiss the appeal. 1 28 U.S.C. § 2253; United States ex rel. Carey v. Keeper of Montgomery County Prison, 3 Cir., 202 F.2d 267. 2 Loper v. Ellis, 5 Cir., 224 F.2d 901: Franey v. State of Florida, 5 Cir., 211 F.2d 447. 3 State v. G......