Zimmer v. Langlois
| Decision Date | 07 May 1964 |
| Docket Number | Misc. No. 102. |
| Parties | Frederick B. ZIMMER, Petitioner, v. Harold V. LANGLOIS, Warden, Respondent. |
| Court | U.S. Court of Appeals — First Circuit |
Frederick B. Zimmer, pro se, on petition.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
This is an undated "Motion for Certificate of Probable Cause" captioned in the "United States Court of Appeals for the First District," presented by Frederick B. Zimmer who is a prisoner in state custody in Rhode Island. It was forwarded to me as Chief Judge of the United States Court of Appeals for the First Circuit in an envelope postmarked "Howard, R. I., April 4, AM 1964." Zimmer recites in his motion that on February 24, 1964, the United States District Court for the District of Rhode Island denied an application filed by him in that court for habeas corpus, and on March 12, 1964, denied his petition for a certificate of probable cause for appeal.
Although the third paragraph of § 2253 of Title 28 U.S.C. provides that an appeal may not be taken to a court of appeals from a final order in a habeas corpus proceeding by one in state custody "unless the justice or judge who rendered the order or a circuit justice or judge issues a certificate of probable cause," nevertheless the Supreme Court held in In re Application of Burwell, 350 U.S. 521, 522, 76 S.Ct. 539, 100 L.Ed. 666 (1956), that a court of appeals has jurisdiction to entertain applications for certificates of probable cause under § 2253. Wherefore, although inartistically addressed, I have submitted Zimmer's motion to the court instead of acting upon it myself as a circuit judge.
An examination of the district court's file supports the allegations in the motion that the court below, District Judge Day, entered an order on February 24, 1964, denying and dismissing a petition by Zimmer for habeas corpus in accordance with a memorandum of the same date and on March 12, 1964, denied Zimmer's petition for certificate of probable cause to appeal. Thus it is established that Zimmer applied to the judge who rendered the final order in his habeas corpus proceeding within the 30 days allowed for appeal in habeas corpus cases and that the judge denied his application for certificate of probable cause to appeal also within the time limited for appeal. Wherefore he had from March 12th to March 24th in which to apply to the circuit justice, a judge of this court or to the court for a certificate of probable cause and still be within the time limited for appeal. However, he waited until after the 30 days for appeal had expired before doing so. Zimmer's present application is therefore out of time under this court's decision in Ex parte Farrell, 189 F.2d 540, 544 (C.A.1), cert. denied, Farrell v. O'Brien, 342 U.S. 839, 72 S.Ct. 64, 96 L.Ed. 634 (1951).
Moreover, we see no merit in Zimmer's case. He was a petty officer in the United States Navy apparently stationed at Newport, Rhode Island. In December 1954 he was arrested, and subsequently he was indicted in the Rhode Island Superior Court for murder in the first degree. His trial on plea of not guilty began on April 11, 1955, at which he was represented by counsel. On April 15th he was allowed to plead nolo contendere to murder in the second degree and was sentenced to imprisonment for life.
Subsequently he filed a petition for habeas corpus in the Supreme Court of Rhode Island alleging...
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Fitzsimmons v. Yeager
...was adhered to by the First Circuit in two cases in 1964 — Landry v. Commonwealth of Massachusetts, 336 F.2d 189, 190, and Zimmer v. Langlois, 331 F.2d 424. In Landry, the appellant had filed in the district court timely notice of appeal and a motion for leave to proceed in forma pauperis w......
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Lawton v. Dacey
...of probable cause, without which he cannot appeal. 28 U.S.C. § 2253. He accordingly renews his request in this court. Zimmer v. Langlois, 1 Cir., 1964, 331 F.2d 424. Petitioner, so far as we can discover from the record presented to us, makes three claims. The first is that the Massachusett......
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Klier v. Wainwright, 72-1474 Summary Calendar.
...is the same time limit which applies to filing a notice of appeal". In support of this proposition three cases are cited: Zimmer v. Langlois, 1 Cir. 1964, 331 F.2d 424; Buder v. Bell, 6 Cir. 1962, 306 F.2d 71; United States ex rel. Kreuter v. Baldwin, 7 Cir. 1931, 49 F.2d 262. The first two......
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United States v. Maroney
...certificate of probable cause and for leave to appeal in forma pauperis was lodged with our Clerk on January 22, 1963. In Zimmer v. Langlois, 331 F.2d 424 (1 Cir. 1964) where the District Court had denied a petition for a writ of habeas corpus on February 24, 1964 and an application for a c......