Mahoney v. Chapman

Fifth Circuit

Mahoney v. Chapman

169 F.2d 130, 1948 U.S. App. LEXIS 2189

CourtCourt of Appeals for the Fifth Circuit

DecidedJuly 16, 1948

DocketNo. 12372

StatusPublished

This text of 169 F.2d 130 (Mahoney v. Chapman) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mahoney v. Chapman, 169 F.2d 130, 1948 U.S. App. LEXIS 2189 (5th Cir. 1948).

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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, The appellant does not present such certificate, but, on the contrary, there appears in the record a finding and order (by the district judge) that “petitioner’s motion for a certificate of probable cause is denied without prejudice as this court cannot conscientiously sign such a certificate.” The record standing thus, the appellant has applied to this court to grant him a certificate of probable cause.

The judges of this court have, therefore, examined the record to determine whether the certificate applied for should issue. Upon such examination they have become convinced, upon the authority of Donald Wade v. Nathan Mayo, 1948, 68 S.Ct. 1270, not only that the certificate should issue, but that the judgment should be reversed. It is, therefore, ordered that a certificate of probable cause issue, and that the judgment be reversed and the cause remanded for trial of the issues tendered on appellant’s application for the writ of habeas corpus.

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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, The appellant does not present such certificate, but, on the contrary, there appears in the record a finding and order (by the district judge) that “petitioner’s motion for a certificate of probable cause is denied without prejudice as this court cannot conscientiously sign such a certificate.” The record standing thus, the appellant has applied to this court to grant him a certificate of probable cause.

The judges of this court have, therefore, examined the record to determine whether the certificate applied for should issue. Upon such examination they have become convinced, upon the authority of Donald Wade v. Nathan Mayo, 1948, 68 S.Ct. 1270, not only that the certificate should issue, but that the judgment should be reversed. It is, therefore, ordered that a certificate of probable cause issue, and that the judgment be reversed and the cause remanded for trial of the issues tendered on appellant’s application for the writ of habeas corpus.

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Bluebook (online)

169 F.2d 130, 1948 U.S. App. LEXIS 2189, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mahoney-v-chapman-ca5-1948.

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