ELLIS
v.
UNITED STATES
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An indigent criminal defendant was denied leave to appeal his housebreaking and larceny conviction in forma pauperis by the Court of Appeals. The Supreme Court held that an indigent's good faith is established by presenting any issue that is not plainly frivolous, and that leave to appeal must be allowed unless the issues are so frivolous they would be dismissed for a non-indigent litigant, requiring appointed counsel to serve as an advocate rather than merely as an amicus curiae before denial of appeal is proper.
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Per Curiam.
The petition for writ of certiorari is granted, as is leave to proceed in forma pauperis.
The Court of Appeals denied petitioner leave to appeal in forma pauperis a conviction for housebreaking and larceny. 101 U. S. App. D. C. 386, 249 F. 2d 478. The Solicitor General concedes that leave to appeal should have been allowed unless petitioner’s contentions on the merits were frivolous. The only statutory requirement for the allowance of an indigent’s appeal is the applicant’s “good faith.” 28 U. S. C. § 1915. In the absence of some evident improper motive, the applicant’s good faith is established by the presentation of any issue that is not plainly frivolous. Farley v. United States, 354 U. S. 521. The good-faith test must not be converted into a requirement of a preliminary showing of any particular degree of merit. Unless the issues raised are so frivolous that the appeal would be dismissed in the case of a nonindigent litigant, Fed. Rules Crim. Proc. 39 (a), the request of an indigent for leave to appeal in forma pauperis must be allowed.
Normally, allowance of an appeal should not be denied until an indigent has had adequate representation by counsel. Johnson v. United States, 352 U. S. 565. In this case, it appears that the two attorneys appointed by the Court of Appeals, performed essentially the role of amici curiae. But representation in the role of an advocate is required.. If counsel is convinced, after conscientious investigation, that the appeal is frivolous, of course, he may ask to withdraw on that account. If the court is satisfied that counsel has diligently investigated the possible grounds of appeal, and agrees with counsel’s evaluation of the case, then leave to withdraw may be allowed and leave to appeal may be denied. In this case, the Solicitor General concedes, and after examining the record we agree, that the issue presented — probable cause to arrest — is not one that “can necessarily be characterized as frivolous.” Accordingly, the judgment of the Court of Appeals is vacated, and the case is remanded for reconsideration in light of this opinion.
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Cited By (130 total)
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Fretwell v. Louie L. Wainwright, 185 So. 2d 701 (Fla. 1966)…equently the District Court of Appeal reviewed a transcript of the proceedings in the case and independently came to the same conclusion. It sua sponte quashed the appeal. See Carr v. State (Fla.App.2d, 1965), 180 So. 2d 381; Ellis v. United States, 356 U.S. 674, 78 S.Ct. 974, 2 L.Ed.2d 1060, and Douglas v. People of State of California, 372 U.S. 353, 83 S. Ct. 814, 9 L.Ed.2d 811. When a petition for writ of habeas corpus or a Criminal Procedure Rule 1, F.S.A. ch. 924 Appendix, motion raises the question w…
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Herzig v. State, 200 So. 2d 632 (Fla. 4th DCA 1967)…tion for habeas corpus. The Supreme Court of the United States, having established such requirement, has nevertheless permitted counsel to withdraw in a situation similar to the facts of the case before the court here. Ellis v. United States, 1958, 356 U.S. 674, 78 S.Ct. 974, 2 L.Ed.2d 1060. In numerous cases these decisions have caused this court great difficulty in determining whether or not counsel should be appointed and, if appointed, what duties he should perform and whether or not he should be permi…
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Bashlor v. Wainwright, 189 So. 2d 800 (Fla. 1966)…, after conscientious and diligent investigation, determines that no grounds of error exist, the defendant may, of course, continue to prosecute his writ of error, but not, in our view, with counsel paid for by the State. See Ellis v. United States, 356 U.S. 674, 78 S.Ct. 974, 2 L.Ed.2d 1060; Hardy v. United States, 375 U.S. 277, 84 S.Ct. 424, 11 L.Ed.2d 331. * * *’” Due process does not require an appeal or that an indigent convicted of crime shall have as of course the services of an attorney provided by…1 / 2
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Johnson v. United States, 352 U.S. 565 (U.S. 1957)
- Farley v. United States, 354 U.S. 521 (U.S. 1957)
- Ellis v. United States, 249 F.2d 478 (D.C. Cir. 1957)