Moore v. Smith

164 F.2d 483, 1947 U.S. App. LEXIS 1931

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 10, 1947
• Status: Published

Opinion

PER CURIAM.

The petitioner prays that he be permitted to prosecute his application in this court for a writ of habeas corpus in forma pauperis.

This court cannot entertain an application for a writ of habeas corpus, in forma pauperis or otherwise, “except in aid of its appellate jurisdiction.” Thompson v. Smith, 9 Cir., 161 F.2d 728.

There is no appellate jurisdiction, either actual or potential, involved in this case. The petition herein is not one on appeal, but is for an original writ.

Nor could an appeal be taken in this case, since the time has long since expired. According to the petitioner’s own showing, the District Court dismissed without prejudice his petition for a writ of habeas corpus in December, 1945, nearly two years ago. The same court denied the petitioner’s motion to prosecute his appeal in forma pauperis on March 2, 1946, certifying that in its opinion “there is no merit in such appeal,” but adding that it did “not certify that the petitioner is not in good faith in seeking to prosecute such appeal.”

In a case of this kind, “where the detention complained of is by virtue of process issued out of a State court,” no appeal to this court is allowed without a certificate of probable cause. 28 U.S.C.A. § 466.

Furthermore, in the instant case the Supreme Court of the State of Washington denied the petitioner’s application for a writ of habeas corpus, on November 22, 1946. See Waley v. Johnston, 9 Cir., 163 F.2d 556, and the many cases there cited.

For all the foregoing reasons, the motion for permission to proceed in forma pauperis and the petition for a writ of habeas corpus are denied.