Maurez v. Swope

110 F.2d 564, 1940 U.S. App. LEXIS 4598

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 1, 1940
• Status: Published

Opinion

GARRECHT, Circuit Judge.

The petitioner has been before this court on four prior occasions, presenting substantially the same question in each application. DeMaurez v. Swope, Warden, 9 Cir., 100 F.2d 530; Id., 9 Cir., 104 F.2d 758; Ex parte Demaurez, 9 Cir., 106 F.2d 457; Id., unreported memorandum filed October 27, 1939. Three of these petitions were denied as being without merit. It is difficult td discover anything prayed for in this petition which is essentially different from that urged in the numerous prior petitions filed by this petitioner. As near as we can determine, this present petition demands (1) that we issue a writ of habeas corpxts directed to the respondent, or (2) that petitioner be allowed an appeal from an order of a judge of this court, entered August 16, 1939, denying a prior petition for writ of habeas corpus, and (3) an order permitting him to prosecute such appeal in forma pauperis.

(1) Insofar as the petitioner asks the court to grant him a writ of habeas corpus, we must remind the petitioner that “This court, as such, has no power to issue writs of habeas corpus except when necessary for llie exercise of its appellate jurisdiction * * *. This is not such a case.” DeMaurez v. Swope, Warden, 9 Cir., 100 F.2d 530. If it be considered that application is being made to an individual judge, attention is directed to the fact that the Senior Circuit Judge, in passing on a former petition, expressed himself on this very question, as follows, “There is no merit in the petition for a writ of habeas corpus and the application is denied.” Ex parte Demaurez 9 Cir., 106 F.2d 457, 458. With that holding we are in agreement; even if we disagreed, we would hesitate to attempt setting it aside. Tt is highly indiscreet and injudicious for one judge of equal rank and power to review identical matters passed upon by his colleague. Hardy v. North Butte Mining Co., 9 Cir., 22 F.2d 62; Shreve v. Cheeseman, 8 Cir., 69 F. 785, 791; Plattner Implement Co. v. International Harvester Co., 8 Cir., 133 F. 376, 378.

(2) Under the Rules of Civil Procedure (rule 73, 28 U.S.C.A. following section 723c) the appeal is taken “by filing with the District Court a notice of appeal”, not by filing in this court a petition for leave to appeal. We assume that the petitioner has not paid the S5 fee required to be paid the Clerk of the District Court upon filing such notice, and that the Clerk will not file such paper until the fee is paid or an order of court is made permitting the petitioner to proceed in forma pauperis. See Clint Smith et al. v. Johnston, etc. et al., 9 Cir., 109 F.2d 152, decided January 15, 1940, and cases and statutes there cited.

(3) October 27, 1939, the Senior Circuit Judge denied an application for leave to appeal in forma pauperis from his order of August 16, 1939 (Ex parte Demaurez, 9 Cir., 106 F.2d 457), upon the ground that the application was without merit. This is a renewal of such application and we are of opinion that no merit is shown that requires any different order.

Petition and application denied.