Charles Cotten, Sr., Plaintiff-appellant, v. State of Ohio, Defendant-appellee, 959 F.2d 234 (6th Cir. 1992)

ORDER

Charles Cotten, Sr., an Ohio pro se prisoner, appeals a district court order denying his motion to proceed in forma pauperis. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Cotten filed a motion to proceed in forma pauperis. He requested permission to commence his suit as a pauper in which he was seeking a "petition for writ of certiorari to the Court of Common Pleas, Richland County, Mansfield, Ohio." In his petition for a writ of certiorari, Cotten asked the federal district court to issue a writ of certiorari to an Ohio state court, which he claimed never ruled on his 1979 petition for post-conviction relief.

The district court sua sponte denied Cotten in forma pauperis status pursuant to 28 U.S.C. § 1915(d) because a federal district court lacks authority to issue a writ of certiorari to a state court.

On appeal, Cotten argues that he is being confined in violation of his rights under the First, Fifth, Ninth and Fourteenth Amendments. He requests leave to proceed as a pauper, a transcript at government expense and the appointment of counsel. No defendant was served below and no defendant has filed an appearance in this court.

Upon review, we affirm the district court's judgment. Initially, it is noted that the district court's denial of a motion to proceed in forma pauperis is an appealable order. See Roberts v. United States Dist. Court, 339 U.S. 844, 845 (1950) (per curiam).

Although a district court should normally permit a suit to be filed if the plaintiff appears to be a pauper and then dismiss it if frivolous, See Gibson v. R.G. Smith Co., 915 F.2d 260, 262-63 (6th Cir. 1990), given that Cotten's requested relief is absolutely beyond the scope of any federal court to grant, the sua sponte denial was proper in this case as the district court simply lacked proper subject matter jurisdiction to review the matter ab initio. Cf. Hagans v. Lavine, 415 U.S. 528, 536-37 (1974).

No exceptional circumstances exist to warrant review of Cotten's new appellate arguments not raised for the first time in the district court. Taft Broadcasting Co. v. United States, 929 F.2d 240, 243-45 (6th Cir. 1991).

Accordingly, we grant Cotten's request to proceed in forma pauperis for purposes of this appeal only, deny his requests for a transcript at government expense and the appointment of counsel, and affirm the district court's judgment. Rule 9(b) (3), Rules of the Sixth Circuit.