United States Ex Rel. John W. Holland, Petitioner-relator, v. Robert E. Murphy, As Warden of Auburn Prison, Auburn, New York, Respondent, 326 F.2d 191 (2d Cir. 1963)

Holland seeks to appeal from denials of two writs of habeas corpus. On December 31, 1962 Judge Brennan denied one writ by which relator sought to invalidate his conviction in the County Court of Westchester County, New York, under which he was sentenced and is presently detained as a second felony offender. On February 21, 1963, in an opinion reported at 214 F. Supp. 305, Chief Judge Foley denied the other application for habeas corpus by which relator sought to overturn the underlying conviction, which was secured against him in the County Court of Nassau County, New York.

Holland has made two applications to this Court. In each application he seeks a certificate of probable cause, leave to appeal in forma pauperis, and assignment of counsel, in his attempt to appeal from the foregoing denials of habeas corpus. He subsequently filed additional papers in each of these matters seeking ancillary relief. We treat these additional papers as an application for leave to file a petition for a writ of mandamus in forma pauperis and for a writ of mandamus.

The judgment of Judge Brennan is vacated and the cause remanded to the District Court for the Northern District of New York for such further proceedings as may be deemed appropriate in the light of Fay v. Noia, 1963, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837, and Townsend v. Sain, 1963, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770.

In all other respects the applications are denied.