Petitioner is confined in the Florida state prison under sentence for burglary. He filed a petition for habeas corpus in the United States District Court for Southern Florida, which denied the petition without calling for a return and without a hearing. The district judge also denied a certificate of probable cause for an appeal to the circuit court of appeals under 28 U.S.C. § 466, 28 U.S.C.A. § 466. Section 466 requires such a certificate for an appeal from a judgment denying a petition for habeas corpus when the petition complains of 'detention * * * by virtue of process issued out of a State court.' Since the statute authorizes either the district court or 'a judge of the circuit court of appeals' to issue the certificate, the district judge, in his order, stated that petitioner might apply to a judge of the court of appeals for the certificate and for the allowance of his appeal.
Petitioner thereupon filed with the circuit court of appeals a timely application for an appeal in forma pauperis, addressed to the 'Chief Justice' of that court. The application was submitted to the court and by it denied, 147 F.2d 606, on the grounds that petitioner had not presented the certificate of probable cause required by § 466, and that the district judge, on the contrary, had found that no probable cause existed. The court did not consider whether the case was one requiring it or a circuit judge to make the certificate of probable cause.
The case comes here on a motion for leave to file a petition for certiorari and a motion for leave to file a petition for habeas corpus. The questions for decision are: (1) Whether this Court has the power to issue a writ of certiorari; (2) if it has, whether it may review the merits of the decision of the district court; and (3) whether the district court erred in denying the petition for habeas corpus on the grounds it assigned for its decision.
This Court cannot issue a writ of certiorari in the present case under § 240(a) of the Judicial Code, 28 U.S.C. § 347(a), 28 U.S.C.A. § 347(a). Ferguson v. District of Columbia, 270 U.S. 633, 657, 46 S.Ct. 355, 70 L.Ed. 771. Our authority under that section extends only to cases 'in a circuit court of appeals, or in the (United States) Court of Appeals for the District of Columbia.' Here the case was never 'in' the court of appeals, for want of a certificate of probable cause.
But § 262 of the Judicial Code, 28 U.S.C. § 377, 28 U.S.C.A. § 377, authorizes this Court 'to issue all writs not specifically provided for by statute, which may be necessary for the exercise of (its jurisdiction), and agreeable to the usages and principles of law.' By virtue of that section we may grant a writ of certiorari to review the action of the court of appeals in declining to allow an appeal to it. In re 620 Church St. Corp., 299 U.S. 24, 26, 57 S.Ct. 88, 89, 81 L.Ed. 16, and cases cited; Holiday v. Johnston, 313 U.S. 342, 348, note 2, 550, 61 S.Ct. 1015, 1017, 85 L.Ed. 1392; Wells v. United States, 318 U.S. 257, 63 S.Ct. 582, 87 L.Ed. 746; Steffler v. United States, 319 U.S. 38, 63 S.Ct. 948, 87 L.Ed. 1197. And not only does our review extend to a determination of whether the circuit court of appeals abused its discretion in refusing to allow the appeal, but if so, it extends also to questions on the merits sought to be raised by the appeal. See Holiday v. Johnston, supra; Steffler v. United States, supra. We hold that the same principles are applicable here. Hence we are brought to the question whether the district court rightly denied the petition.