Brite et al. v. People of State of California et al, 178 F.2d 925 (9th Cir. 1949)

Appellants, John H. Brite and Coke T. Brite, are in the custody of appellee Robert A. Heinze, Warden of the California State Penitentiary, where they are confined after sentence by a state court. The joint petition of appellants for the issuance of a writ of habeas corpus in which it is claimed they are illegally restrained of their liberties was filed with the United States District Court for the Northern District of California and was dismissed. Petitioners appeal to this court. Section 2253 of Title 28, U.S.A., provides in part as follows: "* * * An appeal may not be taken to the court of appeals from the final order in a habeas corpus proceeding where the detention complained of arises out of process issued by a State court, unless the justice or judge who rendered the order or a circuit justice or judge issues a certificate of probable cause."

The record discloses that no such certificate was ever issued by the district court, and there is no showing that the certificate has been issued by a circuit judge or justice. The record does, however, disclose that a petition for the certificate was filed in the district court. While our jurisdiction is doubtful, in the interests of justice we have reviewed the record and have come to the conclusion that there was no probable cause upon which to base the appeal. Ex parte Hawk, 1944, 321 U.S. 114, 64 S. Ct. 448, 88 L. Ed. 572; Gordon v. Scudder, 9 Cir., 1947, 163 F.2d 518, certiorari denied, 1947, 332 U.S. 830, 68 S. Ct. 208, 92 L. Ed. 404; Ex parte Adamson, 9 Cir., 1948, 167 F.2d 996, certiorari denied, 1948, 334 U.S. 834, 68 S. Ct. 1342, 92 L. Ed. 1761.

We treat the absence of a ruling on appellant's petition for the certificate of probable cause as an adverse ruling and the appeal here as presenting such a petition to us. Compare House v. Mayo, 1945, 324 U.S. 42, 48, 65 S. Ct. 517, 89 L. Ed. 739. We hold that there is no probable cause for appeal and order the appeal dismissed for lack of jurisdiction. Bilik v. Strassheim, 1908, 212 U.S. 551, 29 S. Ct. 684, 53 L. Ed. 649; Ex parte Patrick, 1908, 212 U.S. 555, 29 S. Ct. 686, 53 L. Ed. 650; Campbell v. Mayo, 5 Cir., 1947, 158 F.2d 960, certiorari denied, 1947, 331 U.S. 856, 67 S. Ct. 1745, 91 L. Ed. 1863.

Appeal dismissed.