Eddie Lee White, Appellant, v. United States of America, Appellee, 328 F.2d 304 (8th Cir. 1964)

In accordance with our policy of not leaving any attack upon a federal criminal conviction stand open, the appeal now sought to be taken, by the lodging of a notice of appeal in the District Court, from the denial of appellant's application for a writ of error coram nobis, will be permitted to be docketed without payment of fee, and the appeal will thereupon be dismissed as frivolous.

We have dealt with previous efforts of appellant to attack his conviction in rulings reported in White v. United States, 8 Cir., 279 F.2d 688 (cert. den. 368 U.S. 935, 82 S. Ct. 374, 7 L. Ed. 2d 197), 8 Cir., 303 F.2d 775 and 8 Cir., 307 F.2d 740 (cert. den. 371 U.S. 930, 83 S. Ct. 301, 9 L. Ed. 2d 237).

The attack made in the present application is that the complaint filed before the Commissioner was invalid because it did not show that the person making oath thereto had personal knowledge of the facts alleged; that the warrant issued on the complaint was invalid because it did not "show probable cause or charge a crime"; and that the indictment returned against appellant was invalid because "the signature of Mr. Fallon Kelly [the United States Attorney] and Mr. George Kern [presumably the foreman of the grand jury] is plain forgery on the face of the indictment".

The complaint and the warrant of arrest are without relevancy to or effect upon appellant's trial, conviction and sentence, since, as his papers disclose, these rest upon proceedings had, and not objected to, under the indictment subsequently returned against him. The charge that the signatures on the indictment are forgeries, and that the indictment thus is fraudulent, is frivolous on its face, (a) in respect to the foreman, from the fact of the grand jury's return of the indictment and the court's acceptance thereof, and (b) in respect to the United States Attorney, from the fact of the indictment having been officially proceeded on by him.

In view of the inability of the grounds asserted to afford a basis for collateral attack by appellant of any nature, we do not concern ourselves with the question of whether they otherwise might be within the scope of a writ of error coram nobis.

Appeal docketed and dismissed.