EX PARTE FARRELL

MAGRUDER, Chief Judge.

Since 1929 petitioner Joseph A. Farrell has been a prisoner in Massachusetts State Prison pursuant to a judgment of conviction upon two indictments charging assault with intent to commit rape. The case was tried to a judge of the Superior Court, Middle-sex County, a jury trial having been waived. Counsel engaged for Farrell by his family represented him at the trial. Farrell himself did not testify, nor did he offer any evidence in his own defense. No appeal was taken from the judgment, but at various times Farrell has made unsuccessful efforts to obtain relief in the state courts, by way of habeas corpus and writ of error. He has also filed several successive petitions for habeas corpus in the United States District Court for the District of Massachusetts.

The first of these petitions in the court below was filed in 1943. Judge Sweeney dismissed the petition and denied the writ, on the ground that the right to relief, if any, was in the state courts. Both the district judge and a circuit judge denied applications for a certificate of probable cause for appeal. 28 U.S.C. § 2253. Certiorari was denied by the Supreme Court. Farrell v. Lanagan, 1943, 319 U.S. 776, 63 S.Ct. 1440, 87 L.Ed. 1722.

On October 30, 1946, Farrell filed his second petition for habeas corpus in the federal court. This time, Judge Sweeney issued the writ and held a full hearing on the allegations of the petition. Under questioning of his counsel, Farrell testified at length in support of his petition; but no other witnesses were produced either on his behalf or on behalf of the respondent. The district judge filed a memorandum in which he stated: “Even on the petitioner’s story, I can find no evidence of denial of due process by the state courts.” An order was entered dismissing the petition, discharging the writ, and remanding the prisoner. This order was affirmed by us on appeal. Farrell v. Lanagan, 1 Cir., 1948, 166 F. 2d 845, certiorari denied 1948, 334 U.S. 853, 68 S.Ct. 1509, 92 L.Ed. 1775.

On February 10, 1951, the third petition was filed. Judge Sweeney dismissed it and denied the writ, by order on February 14, 1951. His accompanying memorandum stated as follows: “Under the authority of 28 U.S.C.A. § 2244, the application for a writ of habeas corpus is denied. On two prior occasions this Court and the Court of Appeals have denied the writ to this applicant. Although the applicant states that there is included in the present application a ground which has not heretofore been considered, I cannot find that there is really any substantial ground which has not been presented and determined in the prior applications.”

Finally, on March 19, 1951, Farrell filed his fourth petition. It came before Judge McCarthy, whose memorandum filed March 21, 1951 stated: “There are no grounds in this application which are not included in the applicant’s last petition, and which have not heretofore been considered. See 28 U.S.C.A. sec. 2244.” An order dismissing the petition and denying the writ was entered March 22, 1951.

On April 4, 1951, petitioner filed in the district court a document entitled “Assignment of Errors and motion for certificate of probable cause to issue”, the first paragraph of which might liberally be construed to serve the purpose of an informal notice of appeal. The motion for a certificate of probable cause was denied on the same day by Judge McCarthy. Also, on April 4, 1951, the district judge denied a motion for leave to proceed with the appeal in forma pauperis. On April 11, 1951, Farrell filed a motion for the issuance of a special writ to bring the petitioner before the court for the purpose of argument pro se on the existence of probable cause for an appeal. This motion was denied April 13, 1951.

Petitioner did nothing further until May 16, 1951, on which date he filed in this court the motions now under consideration, asking us (1) to issue a certificate of probable cause for the appeal, and (2) to allow peti tioner to prosecute the appeal in forma pauperis.

In 28 U.S.C. § 2253 it is provided: “An appeal may not he taken to the court of appeals from the final order in a habeas corpus proceeding where the detention complained of arises out of process issued by a State court, unless the justice or judge who rendered the order or a circuit justice or judge issues a certificate of probable cause.” This provision of law goes back to the Act of March 10, 1908, 35 Stat. 40. Congress was concerned to eliminate the abuse of the writ of habeas corpus in the federal courts by the undue interference with state processes incident to protracted appellate proceedings in frivolous cases. See H.R.Rep. No. 23, 60th Cong., 1st Sess. (1908). Thus, for example, sometimes the constitutional point sought to be raised in a petition for habeas corpus is unsubstantial, or clearly without merit in view of controlling decisions of the Supreme Court. Or sometimes the federal district court may issue the writ, and after a full hearing may discharge the same pursuant to findings of fact which an appellate court obviously could not set aside as “clearly erroneous” under Rule 52(a), Federal Rules of Civil Procedure, 28 U.S.C.A. In such and like cases, in order not to frustrate the important public policy implicit in the above-mentioned provision of 28 U.S.C. § 2253, a district judge should not hesitate to deny an application for a certificate of probable cause for appeal. If he should deny such a certificate, in the conviction that an appeal would surely be futile (except for the achievement of delay), he may be reassured by the fact that the possibility of an appeal is not thereby absolutely cut off, because a certificate of probable cause may still be given, upon timely application, by the circuit justice or a circuit judge who may be persuaded that the appeal ought to ■be heard.

Though 28 U.S.C. § 2253 provides that an appeal may not be taken in such cases “unless the justice or judge who rendered the order or a circuit justice or judge issues a certificate of probable cause”, we gather from House v. Mayo, 1945, 324 U.S. 42, 65 S.Ct. 517, 89 L.Ed. 739, that upon timely application the court of appeals itself may issue a certificate of probable cause, and thus vest itself with jurisdiction to hear the appeal. The idea seems to be that what one of the circuit judges had power to do individually could be done by the circuit judges collectively acting as the appellate court. If timely application is made to the court of appeals for a certificate of probable cause, it is error for the judges of that court not to consider whether the case is an appropriate one for a certificate of probable cause; and their failure to consider and dispose of such application may be reviewed by the Supreme Court. House v. Mayo, supra.

We have emphasized that the application for a certificate of probable cause must be a “timely” one, because we are clear that such application in the present case was made too late. We reach this conclusion upon the authority of Matton Steamboat Co., Inc. v. Murphy, 1943, 319 U.S. 412, 63 S.Ct. 1126, 1128, 87 L.Ed. 1483, a case which affords a close analogy to the point now before us.

Matton Steamboat Co., Inc. v. Murphy involved the provision of 28 U.S.C. § 350 (1940 ed.) that no appeal intended to bring any judgment or decree before the Supreme Court of the United States for review “shall be allowed or entertained unless application therefor be duly made within three months after the entry of such judgment or decree.” Within three months after the entry of a judgment by the Court of Appeals of New York, Claim of Cassaretakis, 289 N.Y. 119, 44 N.E. 2d 391, appellant made timely application to the Chief Judge of that court for allowance of an appeal, but the Chief Judge denied the application before the expiration of the three months period. Shortly after the three months had expired, appellant made a new application to an Associate Justice of the Supreme Court for allowance of the appeal, which application the Associate Justice allowed. The Supreme Court, however, concluded that the appeal must be dismissed, since the application to the Associate Justice was untimely, having been made after the expiration of the three months period, and the Court was therefore without jurisdiction to entertain the appeal. In its opinion the Court said, 319 U.S. at page 414, 63 S.Ct. at page 1128, 87 L.Ed. 1483:

“By Rule 36 of our Rules, 28 U.S.C.A. following section 354, an appeal to this Court from a state court of last' resort may be allowed ‘by the chief justice or presiding judge of the state court or by a justice of this court.’ [See Rules 306 U. S. 714.] But such an appeal may not be allowed when no application is made to the judge or justice authorized to allow it within the period prescribed by the statute. Here appellants’ applications to the Chief Judge of the Court of Appeals were timely, and could have been allowed by him either before or after the expiration of the three months period. Cardona v. Quiñones, 240 U.S. 83, 36 S.Ct. 346, 60 L.Ed. 538; Latham v. United States, 131 U.S.Appendix, xcvii, 19 L.Ed. 452; United States v. Vigil, 10 Wall. 423, 427, 19 L.Ed. 954. The appeals could also have been allowed, on such timely applications, by a justice of this Court. And there is nothing in the statute or Rules to preclude application within the three months to both the state judge and a justice of this Court at the same time, where shortness of time makes that necessary to preserve the right of appeal. Cf. Spies v. Illinois, 123 U.S. 131, 142, 8 S.Ct. 21, 22, 31 L.Ed. 80.

“But when the Chief Judge of the Court of Appeals denied appellants’ applications and disallowed the appeals, the applications were no longer pending before him and, at least in the absence of any reconsideration by him, appeals could be allowed only on a new application either to him or to a justice of this Court. The time within which such applications could be made is that prescribed by the statute. Its language is peremptory — ‘no * * * appeal * * ' * shall be allowed or entertained unless application therefor be duly made within three months’. The purport of the words is that the appeal allowed must be one that is applied for within the three months period. An application which has been made within that period and denied does not satisfy that requirement, nor does a later application filed after the time limit has expired even though it be allowed.”

Further, the Court pointed out, any other construction of the statute would defeat its purpose, since it would permit would-be appellants to “prolong indefinitely the appeal period, by making application to one judge within the three months and upon its denial by applying successively to other judges even after the prescribed time for appeal had ended.” 319 U.S. at page 415, 63 S.Ct. at page 1128, 87 L.Ed. 1483.