Dennis Surratt v. United States ( 1958 )

PER CURIAM.

An indigent petitioner without benefit of counsel asks leave to appeal in forma pauperis from a criminal conviction. “Normally, allowance of an appeal should not be denied until an indigent has had adequate representation by counsel.” Ellis v. United States, 356 U.S. 674, 675, 78 S.Ct. 974, 2 L.Ed.2d 1060. The question is not whether we should appoint counsel, but whether we should appoint an attorney to whom petitioner objects. We think this would be unfair both to the attorney and to the petitioner. In order to avoid any possible misunderstanding, we emphasize that we do not question in the slightest degree either the good faith or the competence of any person.

Our usual practice is to appoint new counsel and not trial counsel to represent a petitioner or an appellant in this court. We shall follow this practice in the present case. We followed it in Mitchell v. United States, 104 U.S.App.D.C. -, 259 F.2d 787, certiorari denied 79 S.Ct. 81. That case is not otherwise pertinent here. Mitchell was not appealing from a criminal conviction but from denial of a motion under 28 U.S.C. § 2255 to vacate a sentence. The time for appealing his conviction had expired before his motion was filed. We held he was not entitled to an eviden-tiary hearing in the District Court on his allegations that his trial counsel was incompetent. No such question is presented here. The petitioner Surratt is not seeking an evidentiary hearing on any subject, but only to take a timely appeal from a conviction.

Because he has no funds, he asks to be allowed to proceed without prepayment of costs. We are in no position to decide now whether he is entitled to that privilege. In order that he may have what every convicted person is entitled to, a fair opportunity to point out any possible error of the trial judge, we are providing counsel. Not knowing what issues, if any, counsel will present, we cannot know whether they will be frivolous. If counsel presents an issue that is not clearly frivolous, we must permit petitioner to appeal without prepayment of costs, in order that he may have the same opportunity to proceed with his appeal that a person able to pay costs would have.

The petition will be held in abeyance in order that counsel to be appointed may file a memorandum and the respondent may file a reply.