IN RE DAVID BENTLEY, PETITIONER

   No. 90-5246

   In The Supreme Court Of The United States

   October Term, 1990

   On Petition For A Writ Of Mandamus To The United States Court Of
Appeals For The Seventh Circuit

   Brief For The United States In Opposition

                             OPINION BELOW

   The order of the court of appeals (App., infra) is not reported.

                             JURISDICTION

   The petition for a writ of mandamus was filed on July 23, 1990.
The jurisdiction of this Court is invoked under 28 U.S.C. 1651.

                          QUESTION PRESENTED

   Whether the court of appeals has complied with its responsibility
to process petitioner's appeal in light of its recent ruling denying
his motion to proceed in forma pauperis for failure to comply with
Fed. R. App. P. 24(a).

                               STATEMENT

   1. Following a jury trial in the United States District Court for
the Northern District of Illinois, petitioner was convicted on 22
counts of wire fraud, in violation of 18 U.S.C. 1343.  He was
sentenced to a total of 12 years' imprisonment and ordered to pay
$75,000 in restitution.

   2. On August 23, 1989, petitioner filed a motion pursuant to 28
U.S.C. 2255 to vacate his sentence.  The district court denied the
motion, and petitioner noted an appeal.  The appeal was docketed on
February 6, 1990.

   On March 9, 1990, petitioner filed in the court of appeals a motion
to proceed in forma pauperis.  On June 4, 1990, in response to
petitioner's status inquiry, the pro se clerk of the court of appeals
informed him that his motion to proceed in forma pauperis was still
pending before the court.  Pet. App. 2.

   Petitioner then filed this petition for a writ of mandamus in this
Court.  Subsequently, on September 7, 1990, the court of appeals ruled
on petitioner's motion to proceed in forma pauperis, denying it
without prejudice.  The court noted that under Fed. R. App. P. 24(a),
/1/ applications to proceed on appeal in forma pauperis must be made
in the first instance to the district court.  Pet. 2;  App., infra.

                               ARGUMENT

   Petitioner contends (Pet. 1) that this Court should direct the
court of appeals to process his appeal.  Since the filing of the
petition for a writ of mandamus, however, the court of appeals has
acted on his motion to proceed in forma pauperis by denying it without
prejudice for failure to comply with Fed. R. App. P. 24(a).  That
action temporarily disposes of the case in the court of appeals.
Because the denial of in forma pauperis status was without prejudice,
however, petitioner may now take steps to cure the defect in his
application to proceed in forma pauperis.  If he succeeds in curing
that defect or if he pays the required filing fee, the court of
appeals can then proceed to address the merits of his claims.

   The court of appeals was correct in denying petitioner's motion to
proceed in forma pauperis.  The record before the court of appeals
contained no suggestion that petitioner had filed in the district
court a motion to proceed in forma pauperis.  Nor did petitioner's
papers indicate that he had been permitted to proceed in the district
court in forma pauperis or as a person financially unable to obtain
adequate defense in a criminal case.  See Fed. R. App. P. 24(a).  The
court of appeals therefore properly directed petitioner to cure those
defects and to comply with the requirements of Rule 24 before the
court would grant his motion to proceed in forma pauperis and address
the merits of his appeal.  /2/

   Because the ruling of the court of appeals was without prejudice,
petitioner may now seek in an orderly fashion to proceed on appeal in
forma pauperis, either by filing a motion to so proceed in the
district court or by informing the court of appeals if such leave has
already been given.  Issuing a writ of mandamus to the court of
appeals would therefore be entirely inappropriate in this case.

                              CONCLUSION

   The petition for a writ of mandamus should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   ROBERT S. MUELLER, III

      Assistant Attorney General

   THOMAS M. GANNON

      Attorney

   NOVEMBER 1990

   /1/ In pertinent part, Fed. R. App. P. 24 provides:

         (a) Leave to Proceed on Appeal in Forma Pauperis from
      District Court to Court of Appeals.  A party to an action in a
      district court who desires to proceed on appeal in forma
      pauperis shall file in the district court a motion for leave so
      to proceed, together with an affidavit, showing * * * the
      party's inability to pay fees and costs or to give security
      therefor, the party's belief that that party is entitled to
      redress, and a statement of the issues which that party intends
      to present on appeal.  * * *

         Notwithstanding the provisions of the preceding paragraph, a
      party who has been permitted to proceed in an action in the
      district court in forma pauperis, or who has been permitted to
      proceed there as one who is financially unable to obtain
      adequate defense in a criminal case, may proceed on appeal in
      forma pauperis without further authorization unless (there exist
      circumstances not present in the instant case).

   /2/ Although petitioner has alleged in this Court that he was given
leave in the district court to proceed in forma pauperis, see Pet.
Motion to Proceed in Forma Pauperis 1, he made no such allegation in
his filings in the court of appeals.

   APPENDIX