Biggs, Kalodner and Freedman, Circuit Judges. Kalodner, Circuit Judge (dissenting).
Pursuant to the mandate of the Supreme Court of the United States appellant's petition for leave to appeal and to proceed in forma pauperis will be granted and the Clerk will be directed to proceed forthwith to docket the appeal and to file the record out of time.
We believe that in the circumstances of this case appellant's petition for appointment of counsel should be granted and the appointment will be made in the order which will be entered pursuant to this opinion.
In his petition appellant also sought the right to file handwritten briefs. This request will be granted, and since his counsel may prefer to file typewritten briefs, leave to do so will also be given.
In addition to the argument on the merits of the appeal counsel should present to the court in their respective briefs and arguments their views on the jurisdictional question which may exist with regard to the timeliness of the application for and granting of the certificate of probable cause and the time of filing of the notice of appeal.
We will order the case to be expedited so that when the briefs are filed the Clerk will give the appeal priority of listing before a panel of the Court.
An appropriate order will be entered.
KALODNER, Circuit Judge (dissenting).
The District Court denied the appellant's petition for issuance of a writ of habeas corpus on April 28, 1965. On May 11, 1965 -- thirteen days later -- the appellant filed in the District Court a "Petition for rehearing, reargument and reconsideration". That petition was denied by the District Court on May 14, 1965. On June 14, 1965, he filed in the District Court a notice of appeal and on the same day made application for a certificate of probable cause. The District Court granted the certificate on June 15, 1965.
On July 19, 1965, the appellant filed in this Court a petition for leave to appeal in forma pauperis and to file a handwritten brief. He also prayed in that petition for appointment of counsel. We denied the petition on July 27, 1965 for the reason that we lacked jurisdiction to entertain the appeal inasmuch as the appellant had failed to comply with the requirement of Section 2107, Title 28 U.S.C.A. that notice of appeal be filed in the District Court within 30 days after the denial of his petition for a writ of habeas corpus, and for the further reason that a certificate of probable cause had not been applied for, and granted, within 30 days after the denial of his petition for the habeas corpus writ, as required by Section 2253, Title 28 U.S.C.A.
We regrettably did not state the reasons for our denial of the appellant's petition for leave to appeal in forma pauperis, etc. in our Order of July 27, 1965.*fn1
On October 4, 1965, we denied the appellant's petition for reconsideration of our Order of July 27, 1965.
The Supreme Court of the United States granted certiorari and in a Per Curiam Opinion on April 10, 1967, vacated our Order for the reason that we "erred in denying the petitioner [appellant] the right to appeal after the District Judge had issued a § 2253 certificate of probable cause" and remanded the case "for further proceedings consistent with" its opinion. It must be noted parenthetically that the Supreme Court's Per ...