336 F.2d 189: John H. Landry, Petitioner, Appellant, v. Commonwealth of Massachusetts, Respondent, Appellee
United States Court of Appeals First Circuit. - 336 F.2d 189
Submitted Aug. 18, 1964.Decided Sept. 8, 1964
John H. Landry, pro se, on motions.
James W. Bailey, Asst. Atty. Gen., Massachusetts, appearing for appellee, without opposition.
Before WOODBURY, Chief Judge, and HARTIGAN, Circuit Judge.
WOODBURY, Chief Judge.
This is an application by a prisoner in state custody for appointment of counsel to represent him on an appeal from an order of the district court dismissing his application for writ of habeas corpus and a motion for an extension of time to allow counsel adequately to prepare and present the appeal.
John H. Landry is presently serving concurrent sentences imposed on April 11, 1959, in the Superior Court of the Commonwealth of Massachusetts for Middlesex County on pleas of guilty to five indictments, three charging him with armed robbery, one charging him with assault with a dangerous weapon and another charging him with unlawfully carrying a revolver on his person. Having pursued the post-conviction remedies available to him in the Commonwealth of Massachusetts, he says, to the extent that those remedies are available to him, he filed a petition for habeas corpus in the court below on April 30, 1964. That court, after holding an 'evidentiary type' hearing, dismissed the petition on July 1, 1964, in accordance with its opinion of the same date.
On July 30, 1964, Landry filed notice of appeal in the court below and at the same time a motion for leave to proceed in forma pauperis, supported by an appropriate affidavit, which the court granted. But Landry did not apply and never has applied to the judge who rendered the order dismissing his petition for habeas corpus, or to a circuit justice or judge, or to this court, for a certificate of probable cause for his appeal, and the time has now run for such application under the decision of this court in Ex parte Farrell, 189 F.2d 540, 544 (C.A. 1), cert. denied, Farrell v. O'Brien, 342 U.S. 839, 72 S.Ct. 64, 96 L.Ed. 634 (1951).
In conformity with the categorical command of the third paragraph of 2253 of Title 28 U.S.C. quoted in the margin:1
An order will be entered dismissing this appeal. Consequently orders will also be entered denying the application for appointment of counsel and the motion for extension of time.
'An appeal may not be taken to the court of appeals from the final order in a habeas corpus proceeding where the detention complained of arises out of process issued by a State court, unless the justice or judge who rendered the order or a circuit justice or judge issues a certificate of probable case.'