Boyden v. Smith, 183 F.2d 189 (9th Cir. 1950)

Petitioner seeks an order in his appeal here under 28 U.S.C.A. § 2255 to require the transcription of the testimony taken in the course of the hearing on which he was convicted. The ground of his motion below is that he was illegally apprehended in Tia Juana, Mexico, by one Gayton, who was and is an officer of the City of San Diego, California. Since this is the act of a state officer and not a federal officer, his action affords no ground for relief in a federal court.

The motion also alleges that he was wrongfully treated in a separate habeas corpus proceeding, a matter not the subject of inquiry on a motion to set aside the judgment. The motion further alleges that he was prevented from taking an appeal from the judgment of conviction because a $5 filing fee was not paid and this was error because defendant had previously filed a pauper's affidavit in the same court.

A full transcript of the record, other than of the testimony at the trial, is before us and it appears that the affidavit in forma pauperis was filed in the habeas corpus proceeding and that it does not state that the affiant is a citizen of the United States as required by 28 U.S.C.A. § 1915 (a).

The petition for a transcript of the testimony taken at the trial upon which the petitioner was convicted is denied.