Petition of James Van De La Bogart for a Writ of Habeas Corpus, 273 F.2d 194 (9th Cir. 1959)

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US Court of Appeals for the Ninth Circuit - 273 F.2d 194 (9th Cir. 1959) November 5, 1959

James Van De La Bogart, Florence, Ariz., in pro. per.

Before POPE, HAMLEY and KOELSCH, Circuit Judges.


Petitioner, a prisoner confined in an Arizona penitentiary serving a sentence imposed by a court of that State, petitioned for a writ of habeas corpus in the United States District Court for the District of Arizona. He sought the writ upon the ground that he had been denied a fair trial in the state court. The same question was presented in his original appeal to the Supreme Court of that State, State v. Van Bogart, 85 Ariz. 63, 331 P.2d 597. His complaint was based upon the fact that he was gagged during a portion of the proceedings in the trial court when the jury was being impaneled and the information read to the jury.

The court below heard the petitioner's case, received oral and documentary evidence and made findings of fact and conclusions of law which in general were in accord with the decision of the Supreme Court of the State of Arizona, above cited, and dismissed the petition. Petitioner then sought in the district court leave to proceed in forma pauperis upon an appeal here; and leave was denied, the court certifying that the appeal was not taken in good faith.

Petitioner now seeks leave to proceed in forma pauperis upon an appeal here and has filed an application which we treat as a petition for a certificate of probable cause. We find no reason for disagreeing with the certificate of the trial judge that the appeal is frivolous and not taken in good faith. No purpose would be served by appointing counsel for the petitioner as we have before us sufficient of the record to disclose the frivolous nature of the attempted appeal.

A certificate of probable cause is denied, and the appeal is ordered dismissed as frivolous. People v. Merkouris, 46 Cal. 2d 540, 297 P.2d 999, 1010, and cases there cited.