Order of Court.
And Now, to wit, this 2nd day of March, 1959, after hearing and consideration of the trial transcript, the petitions for the writ, and the relator's numerous briefs, arguments and requests, It Is Ordered, Adjudged and Decreed that relator's application for writ of habeas corpus be and the same hereby is denied at the cost of the relator, Roy Helwig.
It Is Further Ordered that the United States advance fees and costs of transportation due the witnesses attending the habeas corpus hearing in response to subpoenas issued pursuant to order of this court.
'United States District Court
'Western District of Pennsylvania
'Chambers of RABE F. MARSH Judge
'December 24, 1958
United States Attorney
'600 New Federal Building
'Dear Mr. Teitelbaum:
'Re: United States ex rel. Roy Helwig v. Angelo C. Cavell, Warden Civil 17415
'I have issued an order, inter alia, requiring the Marshal to serve nine witnesses requested by relator for his habeas corpus hearing on January 12, 1959, at the cost of the United States Government. The relator is proceeding in forma pauperis. The Marshal advises that he cannot make service and advance transportation costs and witness fees without a certificate from the United States Attorney.
'I realize that you have no interest in the case because the relator is a state prisoner. However, I am requesting you to issue the certificate to the Marshal in order that the relator may have his witnesses in court on the day of the hearing.
'Very truly Yours, '(signed) Rabe F. Marsh 'United States District Judge 'cc:
'Roy Helwig, C-4109 'P.O. Box 9901 'Pittsburgh 33, Pa. 'Richard D. Agresti, Asst. District Attorney 'Court House 'Erie, Pennsylvania'
'United States Department of Justice
'United States Attorney
'Western District of Pennsylvania
'Pittsburgh 19, Penna.
'January 2, 1958 Please refer to initials and number HIT: mmc 'Honorable Rabe F. Marsh 'United States District Judge 'New Federal Building 'Pittsburgh 19, Penna.
'In re: United States ex rel. Roy Helwig v. Angelo C. Cavell, Warden Civil Action No. 17415 'Dear Judge Marsh:
'I make reference to your letter of December 24, 1958 in the above captioned matter, wherein you requested that I issue a certificate to the Marshal in order that the relator may have his witnesses in court on the day for hearing.
'I am advised by the Administrative Office of the United States Department of Justice that no authority exists for such payments. Although the Marshal could execute the subpoenas at your direction there is no basis for advancing transportation costs and witness fees.
'The only provision for such payment to witnesses on behalf of persons proceeding in forma pauperis is under specific statute or under Rule 17(b) of the Federal Rules of Criminal Procedure. No such special acts appear to apply to a habeas corpus action in forma pauperis where a state authority is the representative. Also this is not governed by Rule 17(b). For this reason payment to the witnesses cannot be made by the Department of Justice.
'At the present time a case has arisen in New York involving this same problem; and at the request of the Administrative Office of the United States Courts, the Department of Justice has requested a ruling from the Comptroller General as to the applicability of any statutes that would permit such a payment. After I receive advice that the ruling of the Comptroller General has been received and if it varies from the opinion of the Department of Justice I shall be happy to advise you of it.
'Sincerely yours '(signed) Hubert I. Teitelbaum 'Hubert I. Teitelbaum 'United States Attorney'