456 F2d 1295 Strode v. State of Mississippi

456 F.2d 1295

Willie STRODE, Petitioner-Appellant,
v.
STATE OF MISSISSIPPI, Respondent-Appellee.

No. 71-2572 Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

Feb. 24, 1972.
Rehearing and Rehearing En Banc Denied May 17, 1972.

David Lipman, Johnnie E. Walls, Jr., Greenwood, Miss., Maureen G. Malone, Oxford, Miss., for petitioner-appellant.

A. F. Summer, Atty. Gen., G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, Miss., for respondent-appellee.

Before WISDOM, GODBOLD and RONEY, Circuit Judges.

PER CURIAM:

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1

This is an appeal from denial of a petition for writ of habeas corpus by a prisoner incarcerated pursuant to a state conviction. On August 12, 1971 the district court entered an order stating that it was allowing an appeal, which we construe to mean granting a certificate of probable cause under 28 U.S.C. Sec. 2253, stating that it did so because of the policy of this circuit to allow such an appeal regardless of its merit.

2

There is no such policy of this circuit. Section 2253 provides that an appeal may not be taken from the final order in a habeas proceeding where the detention is under state process unless the habeas judge or a circuit judge or the circuit justice issues a certificate of probable cause. Implementing this, Rule 22(b), FRAP, provides that if the district court denies a certificate of probable cause the applicant may seek a certificate in the Court of Appeals. In 1970, for example, there were 133 applications for certificates of probable cause in this circuit in cases where certificates had been denied by the district judges. Of these, 112 were denied and 21 were granted.

3

On December 23, 1971, apparently having become aware that his prior understanding was a misapprehension, the district judge entered an order vacating his grant of a certificate of probable cause. However, by that date the record had been lodged in this court and briefs had been filed and the case was ready for submission. In view of the status of the case and in the interest of judicial administration we treat the revocation of the certificate of probable cause as of no effect and reach the merits. Having considered the merits, the district court's denial of the writ is affirmed.

4

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

PER CURIAM:

5

The Petition for Rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is denied.

*

Rule 18, 5 Cir.; see isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I