Opinion · Supreme Court of the United States

In Re Application of Burwell

350 U.S. 521

Type
Opinion
Court
Supreme Court of the United States
Jurisdiction
Federal
Date
1956-04-02
Topic
general

How later courts describe this case

  • holding that the court of appeals may not decline to hear a request addressed to the whole court, even though 28 U.S.C. § 2253 only authorizes a single circuit judge to issue a certificate of probable cause to appeal

Citator

In Re Application of Burwell has been questioned or limited by later authorities: relies on overruled authority: 65 S. Ct. 517 (overruled by Hohn v. United States). Read them before relying on it. 33 later decisions cite it.

Authority status
caution
Cited by
33 opinions

Headnotes

  1. Habeas Corpus — Certificates of Probable Cause A Court of Appeals has jurisdiction to entertain applications for certificates of probable cause under 28 U.S.C. § 2253 that are addressed to that court rather than to a judge or judges thereof. 350 U.S. at 522
  2. Habeas Corpus — Procedure on Certificates of Probable Cause It is for the Court of Appeals to determine whether an application to that court for a certificate of probable cause under 28 U.S.C. § 2253 is to be considered by a panel of the court, by one of its judges, or in some other manner the court deems appropriate within the scope of its powers. 350 U.S. at 522
  3. Civil Procedure — Discretion of the Court of Appeals The Supreme Court will not prescribe how the discretion vested in a Court of Appeals acting under 28 U.S.C. § 2253 should be exercised; so long as that court keeps within the bounds of judicial discretion, its action is not reviewable. 350 U.S. at 522
IN RE BURWELL,350 U.S. 521(1956)
76 S.Ct. 539
IN RE APPLICATION OF BURWELL.
CERTIFICATE FROM THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT.fn*
No. 736.
Decided April 2, 1956.
1. A Court of Appeals has jurisdiction to entertain applications for certificates of probable cause, under28 U.S.C. § 2253, addressed to that Court instead of to a judge or judges thereof. P. 522.

2. It is for the Court of Appeals to determine whether an application to that Court for a certificate of probable cause under28 U.S.C. § 2253is to be considered by a panel of that Court, by one of its judges, or in some other way that the Court deems appropriate. P. 522.

3. It is not for this Court to prescribe how the discretion vested in a Court of Appeals, acting under28 U.S.C. § 2253, should be exercised; and, so long as that Court keeps within the bounds of judicial discretion, its action is not reviewable. P. 522.

Certificates dismissed.
PER CURIAM.
The Court of Appeals for the Ninth Circuit has certified to this Court the following three questions:
"(1) Has Congress created in the Court of Appeals, as a court, the jurisdiction to issue a certificate of probable cause, sought from the court, as a court, by the provisions of28 U.S.C. § 2253, replacing the repealed 28 U.S.C. § 466?
"(2) If the Supreme Court holds that Congress has not given the Courts of Appeal such jurisdiction, did the Supreme Court create that jurisdiction, by its per curiam opinion,
rendered without argument
, which failed to consider28 U.S.C. § 2253and was based on the repealed 28 U.S.C. § 466 and House v. Mayo,324 U.S. 42,48(1945), and its remand toPage 522this court `so that the petitioner's application for a certificate of probable cause may be entertained on its merits'?
"(3) If the Supreme Court holds that Congress or the Court creates such jurisdiction by28 U.S.C. § 2253and that House v. Mayo applies, does its mandate mean that all the judges, as judges, or some individual judge, or the court as a court shall consider the petition for a certificate of probable cause?"


Earlier this Term we were constrained to find that the Court of Appeals for the Ninth Circuit was in error in deeming itself without jurisdiction to entertain applications for certificates of probable cause, under28 U.S.C. § 2253, addressed to that court instead of to a judge or judges thereof. Accordingly, we reversed the judgments in these cases.Burwellv.Teets,350 U.S. 808;Rogersv.Teets,350 U.S. 809. Each of these cases was reversed "so that the petitioner's application for a certificate of probable cause may be entertained on its merits."

We did not attempt to lay down a procedure for the Court of Appeals to follow for the entertainment of such applications on their merits. We shall not do so now. It is for the Court of Appeals to determine whether such an application to the court is to be considered by a panel of the Court of Appeals, by one of its judges, or in some other way deemed appropriate by the Court of Appeals within the scope of its powers. Cf.Western Pacific R.Corp. v.Western Pacific R. Co.,345 U.S. 247. It is not for this Court to prescribe how the discretion vested in a Court of Appeals, acting under28 U.S.C. § 2253, should be exercised. SeeUnited Statesv.Rosenburgh, 7 Wall. 580. As long as that court keeps within the bounds of judicial discretion, its action is not reviewable.

The entire certificate in each of these cases must beDismissed.Page 523
  1. Page 521 Together with No. 737,In re Application of Rogers,also on certificate from the same Court. ↩