Nally v. Scott

PER CURIAM. George W. Nally has filed with the clerk of this court a document entitled “Petition for Mandamus”, in which he states that he is confined in the Missouri State Penitentiary by virtue of process issued out of the state court and that his detention is wrongful ; that he sought relief in the state courts without avail and that he then applied to the federal district court for a writ of habeas corpus. There was a trial .before that court upon the application for the writ and a final decision was rendered by which the writ was denied. Thereupon a petition for an appeal in forma pauperis to this court was submitted to the district court and the Attorney General of Missouri “filed a motion requesting the court to deny appeal in forma pauperis and to make an order certifying that the grounds alleged by the petitioner in his application for a writ of habeas corpus are frivolous, without merit, and not in good faith, etc.” The district court sustained the motion and entered an order denying the petition and application for leave to proceed on appeal in forma pauperis. The “Petition for Mandamus” herein is in effect an application to this court to entertain an appeal in forma pau-peris from the order denying the writ of habeas corpus and to require the proceedings to be certified and filed. Title 28 U.S.C.A. § 466 provides that no appeal to the circuit court of appeals shall be allowed from a final decision by a court of the United States in a proceeding in habeas corpus “where the detention complained of is by virtue of process issued out of a State court * * * unless the United States court by which the final decision was rendered or a judge of the circuit court of appeals shall be of opinion that there exists probable cause for an appeal, in which event, on allowing the same, the said court or judge shall certify that there is probable cause for such allowance.” It is clear from the showing before this court that the district court which rendered the final decision denying writ of habeas corpus ha.s also considered Nally’s application for appeal from such decision; that the grounds of his application for the writ were deemed to be frivolous and without merit and that no certificate of probable cause for allowance of appeal was granted. This court is therefore prohibited by the [563] statute from allowing appeal from the decision of the district court denying the writ of habeas corpus and the petition of George W. Nallv is in all respects denied. Citations 28 U.S.C.A. § 466. Dismissed.