Johnson v. Turner

MOREMEN, Chief Justice.

Petitioner states that he is imprisoned under a conviction for willful murder. He moved in the Breathitt Circuit Court to vacate judgment under RCr 11.42. Since petitioner was a pauper, an attorney was appointed for him and a hearing was held. An order overruling his motion was affirmed on appeal to this Court and a petition for rehearing was overruled July 2, 1965.

Petitioner now seeks an order of this Court compelling the Breathitt Circuit Court to furnish him a copy of the record of the trial and of the hearing. The reason given is that he “desires to pursue his action to the U. S. Supreme Court” and the trial court has not honored his request.

The petition is fatally defective in that it does not allege that any proceedings in the U. S. Supreme Court have been commenced, a prerequisite to the relief asked. Moore v. Ropke, Ky., 385 S.W.2d 161; Jones v. Breslin, Ky., 385 S.W.2d 71.

If that court had taken jurisdiction of petitioner’s case his request would not properly be in this Court. We will not order preparation of a transcript for an indigent who applies to this Court unless he alleges some ground that might entitle him to relief. Oakes v. Gentry, Ky., 380 S.W. 2d 237. In the instant case we have already held that the alleged grounds for granting the motion to vacate have no merit. Johnson v. Commonwealth, Ky., 391 S.W.2d 365. Accordingly it would be inconsistent for this Court now to hold that these grounds are meritorious for the purpose of an appeal to another court.

The petition is denied.