Johnson v. United States, 352 U.S. 565 (1957)

ON MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

AND ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

1. Under 28 U.S.C. § 1915, which provides that an appeal may not be taken in forma pauperis if the trial court certifies that it is not taken in good faith, a convicted defendant is not barred from showing that such a certification was unwarranted and that an appeal should be allowed. Pp. 565-566.

2. Although a certification by a District Court under 28 U.S.C. § 1915 that an appeal is not taken in good faith carries great weight, it is the duty of a Court of Appeals, upon a proper showing, to set such a certification aside. P. 566.

3. To a convicted defendant who challenges a trial court’s certification under 28 U.S.C. § 1915, a Court of Appeals must afford the aid of counsel unless he insists on being his own, and either the defendant or assigned counsel must be enabled to show that the grounds for seeking an appeal are not frivolous, and do not justify the finding that the appeal is not sought in good faith. P. 566.

4. Although it is not required in every such case that the United States must furnish the defendant with a stenographic transcript of the trial, it is essential that he be assured some appropriate means of making manifest the basis of his claim that the trial court’s certification was unwarranted. P. 566.

238 F.2d 565, judgment vacated and case remanded.