194 F. 2d 1011 - Hamilton v. United States

This is a motion to allow an appeal to be prosecuted in forma pauperis from an order denying a motion under 28 U.S.C. § 2255 to set aside a judgment and sentence entered upon a plea of guilty to an indictment charging appellant with fraudulent use of the mails. Defendant was convicted under the indictment and sentenced to a term in prison. Subsequently the trial judge set aside the verdict and judgment and ordered a new trial in the case. A competent attorney was assigned to defend appellant who went into the case thoroughly and advised appellant to plead guilty to three of the counts of the indictment. Appellant pleaded guilty when his case was called and was again sentenced to prison. The trial judge refused to set aside this sentence on motion made under 2255 and refused to allow an appeal in forma pauperis from the order denying the motion on the ground that the appeal was frivolous and not taken in good faith. Appellant asks that we allow the appeal in forma pauperis, assign counsel to him to present the appeal and admit him to bail while the appeal is pending. His contention is that he was misled by his lawyer in entering the plea of guilty. We have examined the record in the case, have required affidavit to be filed by his lawyer and have considered the affidavits and letters which appellant has filed. It is perfectly clear that no imposition was practiced upon him in the court below, that he was faithfully represented by counsel and that all of his rights were carefully safeguarded. The judge was thoroughly justified in finding that his appeal was frivolous and not taken in good faith. The motion to be allowed to appeal in forma pauperis will accordingly be denied; and, since the examination of the record shows that the appeal is without merit, it will be docketed and dismissed on that ground.

Motion to proceed in forma pauperis denied.

Appeal docketed and dismissed.