Campbell v. Mayo

158 F.2d 960

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 21, 1947
• Docket: No. 11851
• Status: Published

Opinion

PER CURIAM.

This appeal is from “a final decision by a court of the United States in a proceeding in habeas corpus where the detention complained of is by virtue of process issued out of a state court”. Under the provisions of Section 466, Title 28 U.S.C.A., a certificate of probable cause is a jurisdictional prerequisite to such an appeal.¹ For want of that certificate, appellee moves to dismiss the appeal. Appellant admits that he did not apply to the district judge for, and the judge did not issue to him, a certificate of probable cause. He insists, though, that the record contains an abundance of evidence to show that there exists probable cause for his appeal and applies to this court for the issuance of a certificate.

A careful examination of the record tendered in support of this claim, instead of showing the existence of probable cause as claimed by him, shows quite the contrary. The certificate applied for is denied and the appeal is dismissed.

1 Bilik v. Strassheim, 212 U.S. 551, 29 S.Ct. 684, 53 L.Ed. 649; Ex parte Patrick, 212 U.S. 555, 29 S.Ct. 686, 53 L.Ed. 650; House v. Mayo, 5 Cir., 147 F.2d 606.