West v. United States

• Decision Date: 01 April 1954
• Docket Number: Misc. No. 358.
• Citation: 94 US App. DC 46,222 F.2d 774
• Parties: WEST v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

94 US App. DC 46, 222 F.2d 774 (1954)

WEST v. UNITED STATES.

Misc. No. 358.

United States Court of Appeals, District of Columbia Circuit.

Decided April 1, 1954.

On Petition for Reconsideration June 20, 1955.

Mr. Kingdon Gould, Jr., Washington, D. C. (appointed by this Court), for petitioner.

Mr. William R. Glendon, Asst. U. S. Atty. at the time of argument, with whom appeared Messrs. Charles M. Irelan, U. S. Atty. at the time of argument, and William E. Kirk, Jr., Asst. U. S. Atty. at the time the petition was filed, for respondent. Mr. Leo A. Rover, U. S. Atty., also entered appearance for respondent.

Before STEPHENS, Chief Judge, and PROCTOR^* and BAZELON, Circuit Judges.

STEPHENS, Chief Judge.

This case, like Gerringer v. United States, 93 U.S.App.D.C. 403, 213 F.2d 346, is before the court on a "Motion for Permission to Appeal in Forma Pauperis" and upon an additional "Motion for Leave to Apply to District Court for Permission to Appeal in Forma Pauperis". As will appear below, the relevant proceedings in the instant case in both the United States District Court for the District of Columbia and in this Court of Appeals were similar to the proceedings in the Gerringer case.

West was convicted in the District Court of assault with a dangerous weapon and was sentenced on December 17, 1948 to a term of two to six years imprisonment. On the 3d day of September, 1952 he filed a motion in the District Court, under 28 U.S.C. § 2255 (Supp.1952) to set aside the conviction and vacate the judgment.¹ On October 13, 1952 the District Court entered an order denying that motion. On October 20, 1952, the Clerk of the District Court wrote, and apparently on the same day mailed, a letter to West notifying him that the motion had been denied, but not stating the date of the denial. Thereafter, on or about December 17, 1952, the Clerk of this Court of Appeals received through the mail a motion by West for permission to appeal in forma pauperis. The motion did not indicate the date of the entry of the order from which West sought leave to appeal; it moved merely for "permission to appeal in forma pauperis from the judgement sic of the lower court in denying his motion, filed with such court in August 1952, alleging that he was illegally convicted, which motion was filed pursuant to Section 2255, Title 28, U.S.C." The motion stated also that "attached hereto is a copy of the letter of denial dated October 20, 1952 from the Clerk's Office of the United States District Court, D. C." On December 24, 1952, the motion was returned by the Clerk of this Court of Appeals to West for the reasons, as stated in an accompanying letter from the Clerk, that an insufficient number of copies of the motion had been submitted in view of the requirements of the General Rules of this court,² and that the form of proof of service of the motion was not in conformity with Rule 31(h) of the General Rules.³ The letter of the Clerk referred to the motion as a motion for permission to appeal in forma pauperis "from a judgment of the United States District Court entered herein October 20, 1952." On January 15, 1953, the Clerk again received West's motion, with the required number of copies and with a proper affidavit of service. Authority to file the motion without prepayment of costs was given to the Clerk by the Chief Judge on February 11, 1953. On February 13, 1953, the Government filed with the court an opposition to West's motion, contending therein that it should be denied for the reason that West had failed to show (1) that a request for leave to appeal in forma pauperis had been made in the District Court and (2) the action, if any, of the District Court on such a request. In support of its opposition, the Government cited Waterman v. McMillan, 77 U.S.App.D.C. 310, 135 F.2d 807 (D.C. Cir., 1943), certiorari denied, 322 U.S. 749, 64 S.Ct. 1160, 88 L.Ed. 1599 (1944). In that case, in interpreting the then applicable statute⁴ and outlining the procedure to be followed under it the court said:

* * * The purpose of the statute is that the application to proceed in forma pauperis, accompanied by the affidavit, should promptly be made to the District Court, in the first instance, 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 if it reaches a contrary conclusion, to make its certificate accordingly. . . . If the District Court fails to act within a reasonable time, or if it denies the application to proceed in forma pauperis, and fails to certify that the appeal is not taken in good faith, then an application to proceed in forma pauperis may be made directly to this court. In any event, the applicant must show that the District Court has been given an opportunity to certify upon the question of good faith, and the action, if any, which it took. It is obvious that if anything less were required it would be possible for an applicant, by failing to give such opportunity, or by disregarding an adverse certificate of the District Court, to circumvent the requirement of the statute, and perhaps to defeat its salutary purpose. 135 F.2d at page 808

The Government also asserted that "there was nothing which might be construed as a notice of appeal filed in the District Court or in this Court within the sixty-day period for taking an appeal from the denial of the motion to vacate on October 13, 1952."⁵

On February 19, 1953, this court at the request of West appointed counsel to represent him.⁶ The subsequent proceedings in this court in the instant case and in the Gerringer case, although the cases were not consolidated, were similar and simultaneous. Thus, like Gerringer in the Gerringer case, West in the instant case, through counsel thus appointed, filed with this court his motion for leave to apply to the District Court for permission to appeal in forma pauperis. Like Gerringer, West admitted that he had not followed the procedure for seeking leave to appeal in forma pauperis required by 28 U.S.C. § 1915 (Supp.1952) and described in Waterman v. McMillan. However, and again like Gerringer, he contended that extenuating circumstances existed which were sufficient to warrant the granting by this court of his motion for leave to apply to the District Court, to wit: at the time he mailed to this court his motion for permission to appeal in forma pauperis he had no counsel and was personally unfamiliar with the proper procedure; also the delay by the Clerk of this court in returning to him, West, his motion for permission to appeal in forma pauperis had "prevented him from learning the proper procedure until the time for making use of it had lapsed." On March 31, 1953 the Government filed an opposition to the motion for leave to apply to the District Court for permission to appeal in forma pauperis. The Government urged, as it did in the Gerringer case, that this court lacked jurisdiction to entertain the motion because West had not, within the time prescribed by law, "in any wise indicated to the District Court his intention to appeal." In support of that contention the Government again, i. e., as in the Gerringer case, cited Spengler v. Hughes Tool Co., 169 F.2d 166 (10th Cir., 1948); Lamb v. Shasta Oil Co., 149 F.2d 729 (5th Cir., 1945); and Tinkoff v. West Pub. Co., 138 F.2d 607 (7th Cir., 1943), certiorari denied, 322 U.S. 740, 64 S.Ct. 1054, 88 L.Ed. 1574, rehearing denied, 322 U.S. 773, 64 S.Ct. 1282, 88 L.Ed. 1597 (1944). Cf. also Matton Steamboat Co., Inc. v. Murphy, 319 U.S. 412, 63 S.Ct. 1126, 87 L.Ed. 1483 (1943) and Ex parte Farrell, 189 F.2d 540 (1st Cir.), certiorari denied sub nom. Farrell v. O'Brien, 342 U.S. 839, 72 S.Ct. 64, 96 L.Ed. 634 (1951).

Arguments in behalf of both parties on West's motion for leave to apply to the District Court for permission to appeal in forma pauperis and on the Government's opposition thereto were heard by this court on April 2, 1953, simultaneously with the hearing on Gerringer's similar motion and the Government's similar response thereto in the Gerringer case. Thereafter, West filed in this court a "memorandum in support of oral argument," in which he for the first time contended that by reason of the receipt by the Clerk of this court on or about December 17 of his motion for permission to appeal in forma pauperis this court had acquired jurisdiction to entertain his, West's, motion for leave to apply to the District Court for permission to appeal in forma pauperis. West relied principally upon the ruling and reasoning of the court in Federal Deposit Ins. Corp. v. Congregation Poiley Tzedeck, 159 F.2d 163 (2d Cir., 1946). That case is discussed in this court's opinion in the Gerringer case.

It is clear, in view of the ruling in Gerringer v. United States, that if West had submitted to this court, within the time for taking an appeal, his motion for permission to appeal in forma pauperis, this court would have jurisdiction under the circumstances of the instant case, similar as they are to those in the Gerringer case, to entertain both West's motion for permission to appeal in forma pauperis and his motion for leave to apply to the District Court for permission to appeal in forma pauperis; that is to say, the filing in the wrong court of West's motion for permission to appeal in forma pauperis would not alone be fatal. Since West in the instant case, like Gerringer in the Gerringer case, was an indigent layman not represented by counsel and was personally unfamiliar with the correct procedure, this court would be justified, in the exercise of its discretion, in disregarding the procedural irregularity in the interest of substantial justice. But in the Gerringer case Gerringer had notified this court within the time for taking an appeal of his intention to appeal in forma pauperis; that is to say, Gerringer submitted his motion to this court within the prescribed time. In the instant case, West submitted...