256 F2d 761 Johnson v. Mayo

256 F.2d 761

Oran JOHNSON, Appellant,
Nathan MAYO, as Custodian of The Florida State Prison, Appellee.

No. 16834.

United States Court of Appeals Fifth Circuit.

June 30, 1958.

Thomas Larkin, Jacksonville, Fla., for appellant.

Reeves Bowen, Asst. Atty. Gen., Richard W. Ervin, Atty. Gen., for appellee.

Before CAMERON, JONES and BROWN, Circuit Judges.

CAMERON, Circuit Judge.

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Appellant, Oran Johnson, petitioner below, a prisoner in custody under a State Court sentence, sought in the court below habeas corpus relief therefrom. The District Judge held two hearings on the petition and denied it, granting appellant, however, leave to proceed in forma pauperis, but denying a certificate of probable cause as required by 28 U.S.C.A. 2253. No application having been made to a member of this Court for a certificate of probable cause, this Court is without jurisdiction to entertain the appeal.


In an effort to be certain that appellant, who is serving a life sentence, should be given every possible chance to present his contentions, this Court requested a member of the Florida Bar or outstanding ability to present this appeal to us, and this was done by extended oral argument. In addition, the Attorney General of Florida has filed a brief painstakingly setting forth each of the questions raised by appellant, and answering each of said questions in a fair and unbiased manner.


We have considered the record and the arguments of counsel as if they were placed before us upon an application for a certificate of probable cause. Cf. Franey v. State of Florida, 5 Cir., 1944, 211 F.2d 447; Henson v. Ellis, 5 Cir., 1954, 217 F.2d 134; Maulding v. Ellis, 5 Cir., 1954, 217 F.2d 134; and Atkins v. Ellis, 5 Cir., 1955, 227 F.2d 161. Our consideration leads us to the conclusion that there is no merit in any of appellant's contentions.


From the attitude of the representatives of the State of Florida in the presentation of the case to us, we are confident that the way has been, and will remain, open for appellant to avail himself of the provisions of the Florida law dealing with executive clemency. F.S.A. 940.01 et seq.


None of the Judges of this Court being willing to issue a certificate of probable cause, the appeal is