865 F. 2d 1258 - McLean v. Johnson
865 F2d 1258 McLean v. Johnson
865 F.2d 1258
Unpublished Disposition
James Edward McLEAN, Petitioner-Appellant,
v.
Aaron JOHNSON, Secretary of North Carolina Department of
Correction; Lacy Thornburg, Attorney General for
the State of North Carolina,
Respondents-Appellees.
No. 88-7665.
United States Court of Appeals, Fourth Circuit.
Submitted: Sept. 29, 1988.
Decided: Nov. 28, 1988.
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
James Edward McLean, appellant pro se.
Barry Steven McNeill (Office of the Attorney General of North Carolina), for appellees.
Before K.K. HALL and JAMES DICKSON PHILLIPS, Circuit Judges, and BUTZNER, Senior Circuit Judge.
PER CURIAM:
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James Edward McLean seeks to appeal the district court's order refusing habeas corpus relief pursuant to 28 U.S.C. Sec. 2254. Our review of the record and the district court's opinion accepting the recommendation of the magistrate discloses that this appeal is without merit.1 Accordingly, we grant leave to proceed in forma pauperis,2 but deny a certificate of probable cause to appeal and dismiss the appeal on the reasoning of the district court. McLean v. Johnson, C/A No. 87-816-G (M.D.N.C. June 2, 1988). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.
DISMISSED.
McLean contends for the first time on appeal that the trial court erred in refusing to allow defense counsel to question prospective jurors regarding McLean's prior convictions. Because this issue was not presented to the district court, we do not consider it on appeal. We note, however, that, according to the transcript, counsel did not seek to question prospective jurors regarding McLean's prior convictions
Leave to proceed in forma pauperis should be freely granted. Cruz v. Hauck, 404 U.S. 59 (1971). A determination that an appeal lacks merit is not sufficient ground for denying leave to appeal. Liles v. South Carolina Dep't of Corrections, 414 F.2d 612 (4th Cir.1969). Denial of leave to appeal in forma pauperis is proper only where "the issues raised are so frivolous that the appeal would be dismissed in the case of a non-indigent ... [or] where there is a clear indication that the conduct of an indigent appellant amounts to a deliberate harassment of the courts or an intentional abuse of the judicial process." Id. at 614 n. 1. As neither condition is met, McLean's application for in pauperis status is granted