301 F2d 905 Lipscomb v. United States

301 F.2d 905

Robert E. LIPSCOMB, Appellant,
v.
UNITED STATES of America, Appellee.

No. 17336.

United States Court of Appeals Ninth Circuit.

March 29, 1962.

Jacques R. Welden, San Francisco, Cal., for appellant.

Cecil F. Poole, U.S. Atty., Jerrold M. Ladar, Asst. U.S. Atty., San Francisco, Cal. for appellee.

Before HAMLEY, HAMLIN and BROWNING, Circuit Judges.

PER CURIAM.

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1

Robert E. Lipscomb, a federal prisoner at Alcatraz, has appealed from an order of the district court denying leave to file in forma pauperis an application for a writ of habeas corpus. Appellee has moved to dismiss the appeal on the ground that the order is not appealable because it did not dispose of the application on the merits.

2

An order denying leave to proceed in the district court in forma pauperis is appealable. Roberts v. United States, 339 U.S. 844, 845, 70 S.Ct. 954, 94 L.Ed. 1326; Ex Parte Quirin, 317 U.S. 1, 24, 63 S.Ct. 1, 87 L.Ed. 3. The issue to be decided on such an appeal is whether denial of leave to proceed in forma pauperis was warranted. See Anderson v. Heinze, 9 Cir.,258 F.2d 479, 483.

3

The motion to dismiss the appeal is accordingly denied. Appellant's opening brief, now on file, refers to events subsequent to entry of the district court order which present the question of whether this appeal, or the case itself, have become moot. The parties are requested to discuss this question of mootness in their briefs yet to be filed.