United States of America Ex Rel. Carlos Rodriguez, Appellant, v. J. Vernal Jackson, Appellee, 246 F.2d 730 (2d Cir. 1957)

Upon the original hearing of the relator's application for leave to sue in forma pauperis, we affirmed Judge Brennan's order dismissing the writ. We then had before us his opinion in the district court and Judge Valente's in the coram nobis proceeding in the state court; also some 750 pages of testimony taken in that proceeding, at which the relator had been represented by three lawyers, all told. The questions raised were that there had been a conspiracy against him, subornation of perjury by the prosecution and a refusal to call defense witnesses. Consideration of these questions, adequate as we thought, decided us not only to deny leave to sue in forma pauperis, but also, as we have just said, to affirm the order upon the ground that the constitutional question raised was on its face without any shadow of basis. This motion is to vacate that order under Johnson v. United States, 352 U.S. 565, 77 S. Ct. 550, 1 L. Ed. 2d 593.

We have not understood that decision to mean that we are to appoint an attorney — the only point here at issue — upon every appeal when we have accessible a transcript of the relevant testimony as we have here.¹  Especially does this appear to us to be true when in addition a relator has had the protection of attorneys in the state court. We believe that the facts may expose the levity of the federal question so plainly that we may properly decide the appeal by inspection of the record ourselves. If not, it would follow that all persons, convicted in a state court, however there represented, would always be entitled to a new attorney to raise the question whether they had been denied due process of law. If that is indeed the purport of the decision we shall of course follow it; but we await some more certain declaration than has so far appeared. Motion denied.