Under 28 U.S.C. § 1915, petitioner applied to a Federal
District Court for leave to appeal
in forma pauperis from
his conviction of bank robbery, and asked for a transcript of the
trial record. Though conflicting affidavits concerning petitioner's
contentions of errors at his trial had been filed, the District
Court refused his request for a transcript of the record and denied
his application for leave to appeal
in forma pauperis on
the ground that his appeal was "not taken in good faith."
Petitioner then applied to the Court of Appeals for permission to
appeal
in forma pauperis, but that Court denied his
request, indicating that his claimed errors were without
substance.
Held: petitioner has not been afforded an adequate
opportunity to show the Court of Appeals that his claimed errors
are not frivolous, so as to enable that Court to review properly
the District Court's certification that the appeal was in bad
faith. Accordingly, the judgment of the Court of Appeals is
vacated, and the cause is remanded to it for further proceedings.
Pp.
354 U. S.
521-523.
242 F.2d 338, judgment vacated and cause remanded.
PER CURIAM.
The petition for writ of certiorari is granted, as is the motion
for leave to proceed
in forma pauperis.
Petitioner was convicted of bank robbery in the United States
District Court for the Eastern District of New York and sentenced
to 20 years' imprisonment. Under 28 U.S.C. § 1915, he applied
to the District Court for leave to appeal
in forma
pauperis. Petitioner, who was assisted by court-appointed
counsel in preparing his application, contended that the evidence
was insufficient to justify
Page 354 U. S. 522
his conviction, and that the trial court had committed
reversible error by permitting the United States Attorney to ask
him irrelevant and prejudicial questions about another criminal
offense. Petitioner requested that the District Court make
available a transcript of the trial record so he could substantiate
his claimed errors. In reply, the United States Attorney filed an
affidavit asserting that the evidence was sufficient to sustain
petitioner's conviction. However, the affidavit did not directly
controvert petitioner's claim that the prosecuting attorney had
been allowed to inject irrelevant and prejudicial matter into the
trial. Counsel for petitioner then filed an affidavit in answer
supporting petitioner's allegation of errors.
The District Court refused the request for a transcript of the
trial record and denied the application for leave to appeal
in
forma pauperis on the ground that the appeal was "not taken in
good faith" because it was "frivolous and without merit" and "[t]he
evidence amply supported the verdict." Petitioner then asked the
Court of Appeals for permission to appeal
in forma
pauperis, but that court denied his request, indicating that
his claimed errors were without substance. 242 F.2d 338.
And
see 238 F.2d 575.
As things now stand, conflicting affidavits have been introduced
concerning petitioner's contention of errors at the trial. If the
allegations made by petitioner and his counsel are correct, then it
seems quite clear to us that his appeal cannot be characterized as
frivolous. Before his allegation of errors can be accurately
evaluated, however, to ascertain if they do have any merit, he
should be furnished with a transcript of the trial record -- unless
counsel can agree on a statement of the relevant facts or some
other means are devised to make the minutes of the trial available
to petitioner -- so that he has an opportunity to substantiate his
allegations and point out their significance and so that they can
be appraised on a dependable
Page 354 U. S. 523
record.
Cf. Johnson v. United States, 352 U.
S. 565. In our judgment, petitioner has not yet been
afforded an adequate opportunity to show the Court of Appeals that
his claimed errors are not frivolous, so as to enable that court to
review properly the District Court's certification that the appeal
was in bad faith. Accordingly, the judgment below must be vacated,
and the case remanded to the Court of Appeals for further
proceedings not inconsistent with this opinion.
It is so ordered.
MR. JUSTICE CLARK and MR. JUSTICE HARLAN dissent.
