United States Ex Rel. Willie Breedlove v. Alfred F. Dowd, Warden, Indiana State Prison, No. Undocketed

DUFFY, Circuit Judge. Appellant, a prisoner in a state penitentiary of Indiana, has petitioned this Court for leave to appeal in forma pauperis from orders of the District Court dated May 29, 1959, and June 23, 1959, wherein the District Court denied leave to appeal in forma pauperis, certifying the appeal was not taken in good faith. No statement was made by the District Court as to the reasons for this conclusion. As is often the case in petitions similar to the one at bar, we are left in the dark as to just what proceedings were had in the District Court. We do know that petitioner filed a petition for a writ of habeas corpus which the Court denied. We do not know whether a hearing was held or whether the petition was denied without hearing. Had the District Judge filed a memo stating his reasons for certifying the appeal was not taken in good faith, we would probably be adequately advised as to the details of the proceedings in the District Court. Confronted with similar problems, the Court of Appeals for the Eighth Circuit has adopted the practice of requiring the Clerk of the District Court to send up the files and records which, if the appeal were perfected, would constitute the original record on appeal. Gershon v. United States, 8 Cir., 243 F.2d 527, 529. We think the procedure we proposed will be less cumbersome. We are forwarding the file herein to the District Court with instructions to that Court to prepare a memo or opinion as to the basis for the conclusion that the instant appeal was not taken in good faith. Such memo together with the file will then be returned to the Clerk of this Court. All District Courts in the Circuit are advised that hereafter, when a certificate is entered that an appeal is not taken in good faith, such certificate shall be accompanied by a statement of the reasons for such conclusion. Remanded.