John Ruble Stuart, Petitioner, v. Lynn Bomar, Warden, Respondent, 261 F.2d 274 (6th Cir. 1958)

Petitioner has tendered to the Clerk of this Court a signed paper styled, 'Notice of Appeal To The United States Court of Appeal,' which purports to give notice of his appeal to this Court from the final order dismissing his application for writ of habeas corpus entered on October 22, 1958, by the United States District Court for the Middle District of Tennessee. He has attached to this Notice of Appeal numerous papers of various nature, including a motion to proceed in forma pauperis, a four-page signed document captioned, 'Petition for Extension of Time in which To Appeal to the United States Court of Appeal to Sixth Circuit, Cincinnati, Ohio, from Federal Court, Middle Division, Nashville, Tennessee. District Federal Court Dismisal Writ of Habeas Corpus, under Civil Action No. 2581, and Denial of Motion, judicial Statement to Appeal to this Honorable Court.', and purported copies of various papers filed in the United States District Court for the Middle District of Tennessee, and in the Criminal Court, Hamblen County, Tennessee, in which state court petitioner apparently was convicted of murder and sentenced to confinement in the State Penitentiary for a period of 99 years.

It appears from said papers that petitioner filed in the District Court on October 27, 1958, what purports to be a notice of appeal from the order of October 22, 1958, the sufficiency of which we do not pass upon at this time. Although the 'Notice of Appeal' tendered to the Clerk of this Court states that petitioner's 'Motion to Appeal' filed with the District Court was denied by order of October 28, 1958, a copy of the Court's order of October 28, 1958, included in the papers above referred to, reads, 'It is, therefore, ordered that the motion of petitioner for an appeal in forma pauperis be and the same is hereby denied.'

It also appears from said papers that the United States District Judge for the Middle District of Tennessee, relying in part upon the failure of the petitioner to exhaust his available state remedies, refused to issue a certificate of probable cause, required by Sec. 2253, Title 28, U.S.Code, in order to take an appeal to this court from the order dismissing the application for writ of habeas corpus.

The petitioner is not represented by an attorney and some of the documents above referred to, which were prepared by petitioner personally, are lengthy, with the exact meaning and purport thereof difficult to understand.

The Court of Appeals does not have the authority to grant an appeal from a final judgment of the District Court. Rule 73(a), Rules of Civil Procedure, 28 U.S.C.A.; Taylor v. Squier, 9 Cir., 183 F.2d 67.

If the various papers tendered to the Clerk of this Court be construed as an application for the issuance of a certificate of probable cause, it is denied. Sec. 2254, Title 28, U.S.Code.

It is, accordingly, ordered that petitioner's motions included in the papers hereinabove referred to be denied.