Gilbert Sagaser, Appellant, v. Maurice H. Sigler, Warden, Nebraska State Penitentiary, Appellee, 374 F.2d 509 (8th Cir. 1967)

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US Court of Appeals for the Eighth Circuit - 374 F.2d 509 (8th Cir. 1967) March 22, 1967

Gilbert Sagaser, pro se.

Clarence A. H. Meyer, Atty. Gen. of Nebraska, Lincoln, Neb., for appellee.

Before MEHAFFY and GIBSON, Circuit Judges.


Petitioner, Gilbert Sagaser, an inmate of the Nebraska State Penitentiary, seeks to appeal an order of the United States District Court for the District of Nebraska denying his application for a writ of habeas corpus. The District Court granted petitioner the right to file a notice of appeal without prepayment of costs and to proceed in forma pauperis. It appears from the record that the District Court did not grant a certificate of probable cause, and, in fact, no such certificate was requested of that court.

A certificate of probable cause is a jurisdictional prerequisite to an appeal as provided by 28 U.S.C.A. § 2253:

"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 cause."

The District Court has not issued a certificate of probable cause and we, therefore, grant respondent's motion to dismiss the appeal.

It is so ordered.