United States v. Tucker, 213 F.2d 784 (9th Cir. 1954)

This appears to be a petition for leave to appeal in forma pauperis from a denial by the trial court of a motion for extension of time to file notice of appeal and from a denial of leave to appeal in forma pauperis.

The trial judge has certified, pursuant to 28 U.S.C.A. § 1915, that the appeal is not taken in good faith.

The petition is accordingly denied.

DENMAN, Chief Judge.

I concur in the order of the court, but dissent from its failure to consider Tucker's main contention in his motion to appeal forma pauperis.

It is that after his attorney had retired from the case when sentence was pronounced Tucker informed the court that he wished to appeal from his conviction and that no notice of appeal was filed.

Such allegations in his verified motion raise a substantial question as to whether he was entitled to the benefits of that portion of Rule 37(a) (2), Fed. R. Crim. P. 18 U.S.C.A., which provides:

"When a court after trial imposes sentence upon a defendant not represented by counsel, the defendant shall be advised of his right to appeal and if he so requests, the clerk shall prepare and file forthwith a notice of appeal on behalf of the defendant."

See also Boykin v. Huff, 73 App.D.C. 378, 121 F.2d 865.

If such an obvious substantial question existed, we would be required to hold that the finding of the district court that the appeal was not taken in good faith was not warranted. Higgins v. Binns, 9 Cir., 204 F.2d 327 (Denman, Healy, Pope.) Cf. Wells v. United States, 318 U.S. 257, 259, 63 S. Ct. 582, 87 L. Ed. 746. Other courts have indicated that they would follow a similar rule if the certificate is without warrant or not issued in good faith. Bernstein v. United States, 4 Cir., 195 F.2d 517; Higgins v. Steele, 8 Cir., 195 F.2d 366, 369; Newman v. United States, 87 U.S.App.D.C. 419, 184 F.2d 275; Johnson v. Hunter, 10 Cir., 144 F.2d 565.

However, the reporter's transcription of what occurred at the time of Tucker's alleged request that an appeal be taken is a part of the record below and shows that no such request for taking an appeal was made. Hence, I concur in the denial of the motion.