309 F2d 130 Lipscomb v. J Madigan

309 F.2d 130

Robert E. LIPSCOMB, Appellant,
Paul J. MADIGAN, Warden, United States Penitentiary, Alcatraz, California, Appellee.

No. 17336.

United States Court of Appeals Ninth Circuit.

October 19, 1962.

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

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

Before HAMLEY, HAMLIN and BROWNING, Circuit Judges.


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Robert E. Lipscomb, a federal prisoner incarcerated at Alcatraz, appeals from an order of the district court denying leave to file, in forma pauperis, an application for a writ of habeas corpus.


Leave was denied to proceed with the habeas corpus proceeding in forma pauperis on the ground that Lipscomb should first present his asserted ground for relief in a 28 U.S.C., § 2255 proceeding brought in the sentencing court, the United States District Court for the Eastern District of Missouri.


This appeal was taken on March 30, 1961. It has come to our attention that thereafter, on April 28, 1961, Lipscomb complied with the procedure prescribed in the district court order here under review, by instituting a section 2255 proceeding in the sentencing court. Having followed the procedure specified in the district court order, Lipscomb has in effect abandoned his appeal.


The appeal is accordingly dismissed, but without prejudice as to any question sought to be raised on the appeal.