Frank Matey, Plaintiff, v. Mell G. Underwood, Judge, United States District Court,southern District of Ohio, Respondent.undocketed, 276 F.2d 52 (6th Cir. 1960)

Frank Matey, an inmate of the Ohio State Penitentiary, has filed a petition in this court against the respondent, Mell G. Underwood, Judge of the United States District Court, for the Southern District of Ohio, for a peremptory writ of mandamus.

Upon consideration of the petition the Court finds from the record attached to and made a part of the petition that the respondent on the 25th day of November, 1959 denied the petitioner's application for a writ of habeas corpus; that said application was denied as a matter of law for the reason that the petitioner's allegations of fact failed to support his claim of constitutional violations; that said petitioner attempted to file an original application for a writ of habeas corpus in this court which was denied for want of jurisdiction, on December 10, 1959; that thereafter the petitioner filed a notice of appeal together with a petition for leave to file a petition for habeas corpus in forma pauperis and a petition for writ of habeas corpus in this court; that these papers were returned to the petitioner by the Cherk for the reason that this Court cannot entertain a notice of appeal filed directly in this Court; that the respondent by order under date of January 22, 1960 denied the petitioner's application for leave to proceed in forma pauperis for the reason that the contemplated appeal was frivolous and without merit, and overruled the petitioner's motion for a certificate of probable cause for the reason that there was no substantial ground for appeal; that according to the allegations of the petition, the petitioner seeks to require the respondent to show cause why the original petition for a writ of habeas corpus was denied.

Upon these findings, the Court concludes that the petitioner seeks a review of the action of the respondent as a District Judge in denying his original application for a writ of habeas corpus. An order to show cause will not be issued on a petition for a peremptory writ of mandamus as a substitute for an appeal. Roche v. Evaporated Milk Association, 319 U.S. 21, 26, 63 S. Ct. 938, 87 L. Ed. 1185; Ex. parte Fahey, 332 U.S. 258, 67 S. Ct. 1558, 91 L. Ed. 2041; Bankers Life and Casualty Co. v. Holland, 346 U.S. 379, 74 S. Ct. 145, 98 L. Ed. 106; Panhandle Eastern Pipe Line Company v. Thornton, 6 Cir., 267 F.2d 459, certiorari denied 361 U.S. 820, 80 S. Ct. 65, 4 L. Ed. 2d 66; Beneke v. Weick, 6 Cir., 275 F.2d 38; In re Josephson, 1 Cir., 218 F.2d 174.

It is therefore ordered that the petition for a peremptory writ of mandamus be denied.