Walleck v. Hudspeth, 2490.
| Decision Date | 19 May 1942 |
| Docket Number | No. 2490.,2490. |
| Citation | 128 F.2d 343 |
| Parties | WALLECK v. HUDSPETH, Warden, United States Penitentiary, Leavenworth, Kansas. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Appellant Pro Se.
Summerfield S. Alexander, U. S. Atty., and Homer Davis, Asst. U. S. Atty., both of Topeka, Kan., for appellee.
Before PHILLIPS, HUXMAN, and MURRAH, Circuit Judges.
By application for writ of habeas corpus, petitioner, Victor S. Walleck, sought release from the federal penitentiary at Leavenworth, Kansas, where he is confined under sentence and commitment from the District Court of the United States for the Southern District of New York. The ground for the application for the writ was that he was denied the right to the effective assistance of counsel and to adequately present his defense. Petitioner has appealed from the decision of the trial court denying his application for the writ.
At the outset we are confronted with a challenge to the jurisdiction of this court. The point urged is that the trial court, having made a finding that the appeal was without merit and not taken in good faith, entered an order denying the application to appeal in forma pauperis. It is urged that in the face of such an order, this court is without jurisdiction to entertain the appeal.
The record shows that the trial court entered its judgment discharging the writ and remanding petitioner to the custody of respondent September 9, 1941. On September 23, petitioner presented a notice of appeal to the trial court, which, omitting the formal part thereof, is as follows:
The notice of appeal was filed in the office of the clerk of the court September 23, 1941. On October 28, 1941, the court entered an order which in substance recited that for good cause shown, the time for filing and docketing the appeal was enlarged to and including December 22, 1941. Thereafter, on October 30, 1941, without referring to its former order granting the right to appeal in forma pauperis, the court entered the order on which respondent relies, denying the right to so appeal. No reason is given why the court, having in its first order, by implication, found that the appeal was in good faith and meritorious, on October 30 reversed itself and found that the appeal was frivolous and without merit.
A question might be raised as to whether a court once having granted the right to appeal in forma pauperis and notice of appeal having been filed pursuant thereto, could thereafter nullify the appeal by entering a further order denying that which it had formerly granted and in reliance on which an appeal had been taken. But our jurisdiction is not dependent on an answer to this question.
Under Rule 73 of the New Rules of Civil Procedure, 28 U.S.C.A. following section 723c, an appeal is perfected by filing a proper notice of appeal. De Maurez v. Swope, Warden, 9 Cir., 110 F.2d 564, and Miller v. United States, 7 Cir., 114 F.2d 267. The rule provides that if a proper notice of appeal is filed, failure to take any of the further steps required to secure the review of the judgment does not destroy the validity of the appeal, but subjects an appellant to such orders of the appellate court as it deems proper, which may include an order of dismissal. Filing of the notice constitutes a valid appeal and vests jurisdiction of the case in the appellate court. The appellate court thereafter has power to control the further steps in that court in perfecting and hearing the appeal.
After entry of the order of October 30, petitioner filed an application in this court for an order permitting him to appeal in forma pauperis. We did not grant this application. We did direct that the case be docketed instanter and then entered an order requiring the Clerk of the District Court to certify to our court the original pleadings, exhibits, orders, and other papers on file in the case in the District Court. We granted petitioner leave to prosecute the appeal in our court without being required to prepay fees or costs or give security therefor, and directed that the appeal be heard on the original record, certified to our court, and on a typewritten copy of brief by petitioner. We made no order relating to costs in the District Court. We think we have ample authority to control the proceedings in our court, including the right to permit petitioner to proceed in forma pauperis as far as costs in our court are concerned.
Petitioner was arrested in Montreal, Canada, June 26, 1937. He waived extradition and was returned to New York. On June 30 he was arraigned and entered a plea of not guilty, and trial was set for July 13. No inquiry was made by the court at that time respecting counsel. The United States Attorney asked petitioner if he had an attorney. He replied that he had only arrived in New York that morning. The United States Attorney suggested that the Marshal would put him in touch with an attorney. The Marshal suggested the name of an attorney who he said knew his way about the courts and could be of material assistance to him. Petitioner asked the Marshal to see the attorney and have him call. The attorney did not call. On July 13, petitioner was brought to court for trial. When the case was called for trial, the United States Attorney suggested that the petitioner was not represented by attorney, whereupon the following colloquy occurred:
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