Newman v. United States

184 F.2d 275

• Court: Court of Appeals for the D.C. Circuit
• Decided: January 15, 1951
• Docket: Misc. 215
• Status: Published

Opinion

PER CURIAM. '

We have before us a petition for reconsideration of .an order of this court denying leave to appeal in forma pauperis.

Petitioner, James Newman, on January 24, 1947, was sentenced in the United States District Court for the District of Columbia to imprisonment for five to fifteen years upon his plea of guilty to charges of housebreaking and larceny. On March 29, 1949, the. District Court denied Newman’s motion to vacate sentence, under 28 U.S.C.A. § 2255, 1 in which he alleged, inter alia, that his arrest had been illegal, and that a confession given by him was inadmissible because given while he was held without being, taken before a committing officer. The trial court denied the motion to vacate, and subsequently denied leave to proceed on appeal in forma pauperis, certifying that the appeal was not taken in good faith. A later petition for leave to proceed in forma pauperis addressed to this court was denied by us. The instant petition seeks reconsideration of that order.

Leave to proceed on appeal in forma pauperis is a statutory privilege which may not be had “if the trial court certifies in writing that it [the appeal] is not taken in ■ good faith,” . unless “the adverse' certificate * * * was made without warrant or was itself not in good faith.” 2 It appears that the correctness of the action of the trial court both on the motion to vacate and on the motion to proceed in forma pauperis is beyond question.' Petitioner’s sentence and present confinement resulted not from his alleged illegal arrest and confinement, but rather from the judgment of conviction on his •plea of guilty. McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, is inapplicable. Blood v. Hunter, 10 Cir., 150 F.2d 640; Roscoe v. United States, 6 Cir., 148 F.2d 333, certiorari denied 325 U.S. 890, 65 S.Ct. 1581, 89 L.Ed. 2003. See also Redmon v. Squier, 9 Cir., 162 F.2d 195. The petition for reconsideration is accordingly

Denied.

1 , 62 Stat 967, as amended.

2 . Dorsey v. Gill, 80 U.S.App.D.C. 9, 30, 148 F.2d 857, certiorari denied, 325 U.S. 890, 65 S.Ct. 1580, 89 L.Ed. 2003; 27 Stat. 252, as amended, now 28 U.S. C.A. § 1915(a). See also Wells v. United States, 318 U.S. 257, 63 S.Ct. 582, 87 L.Ed. 746; Waterman v. McMillan, 77 U.S.App.D.C. 310, 135 F.2d 807.