Gorden K. Darcy v. Harley O. Teets, Warden of the California State Prison at San Quentin

232 F.2d 732, 1956 U.S. App. LEXIS 3086

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 29, 1956
• Docket: 14962_1
• Status: Published

Opinions

STEPHENS, Circuit Judge.

Petitioner was heretofore convicted of a State offense and is presently restrained of his liberty by the State under a judgment of a competent State court. We have examined the petition for the issuance of the writ of habeas corpus, which petition was denied by the United States District Court, and; find that it shows upon its face that petitioner has not exhausted his State remedies. He has been denied the writ by State courts under petitions presented while he was under State restraint by virtue of a sentence for another offense. No authority need be mentioned for the well known principle that the writ will not issue where it could not free the petitioner from restraint.

However, petitioner is now free from restraint other than the restraint upon the judgment in the instant case, and appears to be free to have his petition for the writ considered upon its merit by the State courts.

Appellant-petitioner has moved for permission to prosecute his appeal to this court in forma pauperis, which motion was denied by the United States District Court in the following language:

“Concerning [such application] the court does not believe the appeal presents a substantial question for, decision, or that the appeal is taken in good faith.” (See § 1915, Title 28 U.S.C.A.)

There is nothing in the record to indicate that the district court was in error in ruling as it did. From what we have already said, it is apparent that the United States District Court was right in denying the motion to proceed in forma pauperis.

Appellant-petitioner also moves to be allowed to present his appeal upon typewritten briefs and record. In the circumstances this motion should also be denied.

The motions are denied.