James H. Dunn, Petitioner-appellant, v. C. Murray Henderson, Warden, Louisiana State Penitentiary, Respondent-appellee, 446 F.2d 1398 (5th Cir. 1971)

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US Court of Appeals for the Fifth Circuit - 446 F.2d 1398 (5th Cir. 1971) August 19, 1971

James Dunn, pro se.

Jack P. F. Gremillion, Atty. Gen. of La., Baton Rouge, La., for respondent-appellee.

Before, BELL, AINSWORTH and GODBOLD, Circuit Judges.


Dunn appeals the district court's denial of his petition for habeas corpus, 312 F. Supp. 1370. Although the court's order was entered on May 15, 1970, the appellant did not file a notice of appeal or any document which might reasonably be construed as such until the March 3, 1971 filing of his motion for a certificate of probable cause. The motion was granted on the same date by the district court.

Since the appellant failed to file a notice of appeal until almost eight months beyond the maximum extended time period provided in Rule 4(a), F.R. A.P., the district court had no authority to issue a certificate of probable cause. This Court therefore has no jurisdiction to adjudicate the appeal. Bean v. Wainwright, 5th Cir. 1971, 437 F.2d 112; Lawrence v. Wainwright, 5th Cir. 1969, 419 F.2d 1326, cert. denied 1970, 397 U.S. 1029, 90 S. Ct. 1281, 25 L. Ed. 2d 542; Allen v. Wainwright, 5th Cir. 1967, 384 F.2d 745.

Appeal dismissed.


Rule 18, 5 Cir., Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I