Schenk v. Plummer

WILBUR, Circuit Judge.

Petitioner, claiming he is- before this court because he has been allowed by the tnal court to proceed on appeal in forma pauperis, moves this court for an order appointing counsel to represent him on appeal. He is held under process of state court. The question raised involves an interpretation of the applicable state law.

No certificate of probable cause for the appeal has been obtained as required by 28 U.S.C.A. § 466. Such a certificate was essential to the jurisdiction of this court on appeal before the new rules were adopted. Rules of Civil Procedure in' the District Court, effective September 16, 1938, 28 U.S.C.A. following section 723c. Genna v. Frazier, 5 Cir., 24 F.2d 706; United States ex rel. Kreuter v. Baldwin, 7 Cir., 49 F.2d 262; Wilson v. Lanagan, 79 F.2d 702, decided by the Circuit Court of Appeals for the First Circuit; Ex parte Cowen, 9 Cir., 98 F.2d 530; Ex parte Deatherage, 9 Cir., 98 F.2d 793; Ex parte Cowen, on rehearing, 9 Cir., 98 F.2d 1019, by the Senior Circuit Judge of this circuk .

If W0 assume ^ the certificate of probable cause required by' 28 U.S.C.A. § 466 is nQ 1q required, it is stiU true that there is no merit in the appeal herein because petitioner>s remedy lies in an appeal tQ the g e Court from the deci. sions Qf the state court (see cases dted supra). Under these circumstances, even .f we had authority t0 appoint an attorney on an appeai 0f this nature, the application should be denie(i 2g U-S>CA_ § 83S. - s