Stewart v. St. Sure

131 F.2d 862, 1942 U.S. App. LEXIS 2974

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 24, 1942
• Status: Published

Opinion

WILBUR, Circuit Judge.

The petitioner seeks leave to file in forma pauperis a petition for writ of mandamus directed to Honorable A. F. St. Sure, United States District Judge, for the Northern District of California, “ * * * commanding him (1) to disregard all the- orders in the court below which denied petitioner his right to be discharged by habeas corpus, (2) to proceed with the trial of all the issues in the court below, and (3) to perform his official duty to grant a writ of habeas corpus and discharge petitioner from the custody.”

He bases his application for a writ of mandamus upon the theory that an “ambiguous appellate mandate” may be corrected by the court issuing the mandate. In re Sanford Fork & Tool Co., 160 U.S. 247, 16 S.Ct. 291, 40 L.Ed. 414. The mandate referred to is that issued by this court affirming the lower court’s denial of a previous application by petitioner for a writ of habeas corpus. Stewart v. Johnston, 9 Cir., 97 F.2d 548. There was no ambiguity in the order of affirmance and if there were the rule relied upon has no application except in the proceedings where the ambiguity arose. Petitioner seeks to apply the rule in seven subsequent applications by him for a writ of habeas corpus each of which has been denied by the District Court and in none of which has an appeal been taken. He seeks by this application to set aside those final orders.

The petition is entirely without merit and for that reason the application for leave to proceed in forma pauperis is denied. Fisher v. Cushman, 9 Cir., 99 F.2d 918.

Application denied.