United States of America Ex Rel. Sullivan v. Robert A. Heinze, Warden, Folsom Prison

Petitioner, a prisoner held under process of the State Court of California, files with this court an appeal from a denial of a writ of habeas corpus, and a “motion for a certificate of probable cause.” Accompanying are copies of a “Petition for Writ of Habeas Corpus and/or Injunction” and an “addendum” thereto. All these documents were similarly filed with the District Court of the Northern District of California, Northern Division.

The District Court denied the petition for habeas corpus and, considering the “addendum” as a petition for rehearing, denied that also.

The petition for a certificate of probable cause, a prerequisite to appeal from a denial of habeas corpus in this case ( 28 U.S.C.A. § 2253 ), fails to disclose application to the trial court for such a certificate. Absent the most unusual circumstances, such failure is fatal to relief in this Court. See In re Application of Burwell, 1956, 350 U.S. 521 , 76 S.Ct. 539 , 100 L.Ed. 666 ; Joyner v. Parkinson, 7 Cir., 1955, 227 F.2d 505 ; Brite v. California, 9 Cir., 1949, 178 F.2d 925 ; Rule 15(5) of the Rules of the United States Court of Appeals for the Ninth Circuit, 28 U.S.C.A. However, since the filing of the…