Opinion
No. 16933.
December 11, 1961. Rehearing Denied January 22, 1962.
Before JOHNSEN, Chief Judge, and MATTHES, Circuit Judge.
Appellant's conviction for bank robbery, under 18 U.S.C. § 2113(a), was affirmed by us in Karp v. United States, 8 Cir., 277 F.2d 843, certiorari denied 364 U.S. 842, 81 S.Ct. 80, 5 L.Ed.2d 65.
Collateral relief was thereafter sought by him through an instrument entitled "Petition for a Writ of Habeas Corpus, Title 28 USCA Section 2255", which the district court denied without a hearing. Treating the petition as one in habeas corpus, the court held that it was without jurisdiction of the matter since appellant was not confined in the district. Treating it as a motion to vacate sentence under 28 U.S.C.A. § 2255, the court held that the questions sought to be raised had been and could only be encompassed in the appeal which he had taken from the judgment of conviction.
These holdings clearly were correct. The court, therefore, was entitled to deny appellant leave to appeal in forma pauperis since the appeal was without merit, and so would have to be regarded as not taken in good faith. Appellant's challenge here to the court's certificate is overruled, and his application for leave to prosecute his appeal in forma pauperis is denied.
To clear the records of the appeal pending from the filing of notice of appeal, the appeal will be permitted to be docketed without payment of fee, but it will thereupon be dismissed as being frivolous.
Appeal dismissed.