Lowe v. Hiatt

77 F. Supp. 923 | M.D. Penn. | 1948

FOLLMER, District Judge.

Petitioner, Richard Anderson Lowe, filed his application for writ of habeas corpus in forma pauperis. In an opinion and order D.C., 77 F.Supp. 303, I denied the writ, stating my reasons therefor. The question now before me is whether an appeal in forma pauperis should be allowed and an order entered for copies of records to be prepared without payment of costs for use therein. The papers filed constitute a direction to the Clerk of Court, but same are being considered as an application.

The right to proceed on appeal in forma pauperis is entirely statutory.¹ It is a privilege, not a right, and no requirement of due process is involved.²

On his appeal in the original criminal proceedings, the Circuit Court for the Second Circuit concluded that such appeal was obviously frivolous on its face. The present proceeding is in my opinion unquestionably in the same category. A petitioner seeking leave to prosecute an appeal in forma pauperis must show some merit in such proposed appeal.³

The present proceeding is so totally frivolous and without merit that I am forced to conclude and do hereby accordingly certify that such appeal is in the opinion of this Court, frivolous, without merit, and not taken in good faith. Petitioner’s application for leave to file notice of appeal in forma pauperis is accordingly denied.

In a communication to the Clerk of Court, the petitioner in referring to the notice of appeal submitted by him states, “And that you make there-of a Sufficient Number of Photo-Stat copies to Comply With Rule 73(b) of the Federal Rules of Civil Procedure [28 U.S.C.A. following section 723c], and to supply me with at Least Two Copies of the Same.” Petitioner is mistaken as to what is required of the Clerk under Rule 73(b): As to his request for copies of papers and records generally —aside from the question of whether any such right exists under the in forma pauperis statute, 28 U.S.C.A. § 832 ⁴ — same is in any event without merit,⁵ and his application therefore denied.

4 In re Fullam, 80 U.S.App.D.C. 273, 152 F.2d 141.

5 Stewart v. St. Sure, Judge, 9 Cir., 109 F.2d 162.

1 Holiday v. Johnston, 9 Cir., 123 F.2d 867, certiorari denied 316 U.S. 660, 62 .S.Ct. 940, 86 L.Ed. 1737, rehearing denied 316 U.S. 709, 62 S.Ct. 1102, 86 L.Ed. 1770.

2 Dorsey v. Gill, 80 U.S.App.D.C. 9, 148 F.2d 857, 877, certiorari denied 325 U. S. 890, 65 S.Ct. 1580, 89 L.Ed. 2003.

3 De Groot v. United States, 9 Cir., 88 F.2d 624; Fisher v. Cushman, District Judge, 9 Cir., 99 F.2d 918.