Opinion
No. 5982.
Submitted May 14, 1962.
Decided June 11, 1962.
Henry M. Fuller, Portsmouth, N.H., for petitioner.
Frank E. Hancock, Atty. Gen., and Richard A. Foley, Asst. Atty. Gen., for respondents.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
In February 1961 petitioner, serving a sentence imposed by the Superior Court of the State of Maine in 1948 on his plea of guilty to a charge of murder, following certain subsequent proceedings in the Maine state court filed a petition for habeas corpus in the United States District Court for the District of Maine. He was furnished court-appointed counsel, with whose advice he then filed a new petition. This petition was heard and denied. The district court, having made extensive findings against the petitioner, refused to issue a certificate of probable cause for appeal, or to authorize an appeal in forma pauperis. An appeal was taken from this action of the court, on which we waived entry fee and permitted petitioner to proceed on typewritten copies. This appeal was prosecuted by the same court-appointed counsel, who, however, failed to file a timely statement of points or other papers or make timely request for extension. As a result of this we dismissed the appeal for want of prosecution, not, however, without examining the file transmitted by the district court and finding no merit in the appeal. Petitioner has now moved for a rehearing and review. We have again examined the record, and have, in addition, examined petitioner's brief on the merits which we have allowed to be filed in connection with his motion in view of the fact that he is an allegedly impecunious petitioner with court-appointed counsel.
The gravamen of petitioner's argument on his appeal is that the court, in finding the facts against him, abused its discretion. The evidence well warrants the findings of the district court.
The petition for rehearing and review is denied.