Opinion
No. ____.
May 7, 1957.
James Francis Hill, pro se.
Before GARDNER, Chief Judge, and SANBORN, Circuit Judge.
James Francis Hill, who is confined in the United States Medical Center for Federal Prisoners at Springfield, Missouri, under a sentence imposed by the United States District Court for the Eastern District of Tennessee, has petitioned this Court for leave to prosecute in forma pauperis an appeal from an order of the United States District Court for the Western District of Missouri, entered April 4, 1957, denying his application for a writ of habeas corpus. It appears that Hill had previously exhausted his remedies under 28 U.S.C. § 2255. The District Court granted him leave to file a notice of appeal in forma pauperis, but denied him leave to proceed further as a poor person, certifying that the appeal is without merit and not taken in good faith.
Title 28 U.S.C. § 1915(a), which authorizes proceedings in forma pauperis on appeal, provides that "An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith."
There is no showing that the certification of the trial court in this case was not made in good faith or that it was unwarranted. See Wells v. United States, 318 U.S. 257, 259, 63 S.Ct. 582, 87 L.Ed. 746. In fact, the files and records of the District Court, which we have examined, demonstrate the contrary, and disclose that Hill has had his full day in court.
In support of his petition, Hill cites Johnson v. United States, 352 U.S. 565, 77 S.Ct. 550, 1 L.Ed.2d 593. That case is inapplicable to his situation, since he is not seeking to appeal in forma pauperis from a judgment of conviction, but is attempting to have vacated the sentence under which he is in custody, and from which he did not appeal. See and compare Gershon v. United States, 8 Cir., 243 F.2d 527.
The petition of Hill for leave to proceed in forma pauperis on appeal is denied.