404 F2d 328 Christian v. United States

404 F.2d 328

Charles Clemen CHRISTIAN, Petitioner,
v.
UNITED STATES of America, Respondent.

Misc. No. 578.

United States Court of Appeals Eighth Circuit.

December 11, 1968.

Before MATTHES and LAY, Circuit Judges.

PER CURIAM.

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1

This matter comes before the court upon application to file an in forma pauperis appeal from the district court's denial of petitioner's § 2255 motion. The district court permitted the filing of notice of appeal without payment of fee but denied leave to proceed on appeal in forma pauperis on the ground that the appeal was not taken in good faith. As the matter now stands before us petitioner lacks authorization to appeal because of the lack of certification that the appeal is in good faith. Procedure governing proceedings in forma pauperis is set forth in Rule 24 of the Federal Rules of Appellate Procedure, which reads as follows:

2

"(a) Leave to Proceed on Appeal in Forma Pauperis from District Court to Court of Appeals. A party to an action in a district court who desires to proceed on appeal in forma pauperis shall file in the district court a motion for leave so to proceed, together with an affidavit showing, in the detail prescribed by Form 4 of the Appendix of Forms, his inability to pay fees and costs or to give security therefor, his belief that he is entitled to redress, and a statement of the issues which he intends to present on appeal. If the motion is granted, the party may proceed without further application to the court of appeals and without prepayment of fees or costs in either court or the giving of security therefor. If the motion is denied, the district court shall state in writing the reasons for the denial.

3

"Notwithstanding the provisions of the preceding paragraph, a party who has been permitted to proceed in an action in the district court in forma pauperis, or who has been permitted to proceed there as one who is financially unable to obtain an adequate defense in a criminal case, may proceed on appeal in forma pauperis without further authorization unless, before or after the notice of appeal is filed, the district court shall certify that the appeal is not taken in good faith or shall find that the party is otherwise not entitled so to proceed, in which event the district court shall state in writing the reasons for such certification or finding.

4

"If a motion for leave to proceed on appeal in forma pauperis is denied by the district court, or if the district court shall certify that the appeal is not taken in good faith or shall find that the party is otherwise not entitled to proceed in forma pauperis, the clerk shall forthwith serve notice of such action. A motion for leave so to proceed may be filed in the court of appeals within 30 days after service of notice of the action of the district court. The motion shall be accompanied by a copy of the affidavit filed in the district court, or by the affidavit prescribed by the first paragraph of this subdivision if no affidavit has been filed in the district court, and by a copy of the statement of reasons given by the district court for its action." (Emphasis ours.)

5

The rule makes clear that the district court may not deny the party the right to appeal in forma pauperis on the ground that the appeal is not taken in good faith without setting forth the reasons for its certification or finding. See Davis v. Clark, 404 F.2d 1356 (D.C.Cir., September, 1968).

6

We hold petitioner's motion in abeyance and direct the district court to enter a statement of reasons pursuant to Rule 24 of the Federal Rules of Appellate Procedure and to transmit the same to this court.