Larry C. Glouser, Petitioner, v. F. E. Van Alstine, Clerk of the United States District Court for the Southern District of Iowa, Respondent, 313 F.2d 199 (8th Cir. 1963)

Petitioner seeks a writ of mandamus to require respondent, as Clerk of the District Court for the Southern District of Iowa, to make filing, as a motion under Rule 35, Federal Rules of Criminal Procedure, 18 U.S.C.A., in petitioner's criminal case, of an instrument captioned by him "Motion to Correct Illegal Sentence".

According to petitioner, respondent takes the position that the instrument, despite its caption, is not a matter which petitioner is entitled to have filed in the criminal case but represents "a new case", and that petitioner therefore may not have it filed except upon payment of the regular docketing fee or by obtaining leave from the Court to proceed in forma pauperis.

Any controversy between petitioner and respondent over filing rights in the District Court is a matter for that Court and not this Court to deal with in the first instance. Until there has been an application to the District Court for an order, and that Court has denied the application or has failed to act in relation to it under circumstances amounting to neglect, no basis exists for this Court to take cognizance of the matter. And should the matter become cognizable on this basis, we would not undertake to grant relief, unless it appeared that the situation was one in which the District Court was without a power of discretion, or, if discretion was entitled to be exercised, that this had been abused.

The application of petitioner, which has been presented in the form of a letter, with pauperis showing, will be permitted to be docketed without payment of fee, but the issuance of a writ will be denied.

Writ denied.