Eddie R. McKibben v. Joe S. Hopper, Warden, Georgia State Prison, Reidsville, Georgia

Fifth Circuit

Eddie R. McKibben v. Joe S. Hopper, Warden, Georgia State Prison, Reidsville, Georgia

565 F.2d 1316, 1978 U.S. App. LEXIS 13110

CourtCourt of Appeals for the Fifth Circuit

DecidedJanuary 10, 1978

Docket77-1834

StatusPublished

Cited by3 cases

This text of 565 F.2d 1316 (Eddie R. McKibben v. Joe S. Hopper, Warden, Georgia State Prison, Reidsville, Georgia) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Eddie R. McKibben v. Joe S. Hopper, Warden, Georgia State Prison, Reidsville, Georgia, 565 F.2d 1316, 1978 U.S. App. LEXIS 13110 (5th Cir. 1978).

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Opinion

*1317 PER CURIAM:

Since the district court has not ruled on the appellant’s motion for a certificate of probable cause, this appeal was improvidently docketed. Lacking such certificate, this Court is without jurisdiction to consider the appeal. Rule 22(b), Federal Rules of Appellate Procedure; 28 U.S.C. § 2253; Welch v. Texas Board of Parole and Pardon, 5 Cir. 1972, 460 F.2d 298; Hines v. Pitcher, 5 Cir. 1971, 440 F.2d 792. This Court may not make the initial determination of whether a certificate of probable cause should be granted. Lee v. Washington Parish, 5 Cir. 1973, 476 F.2d 285; Stewart v. Beto, 5 Cir. 1971, 451 F.2d 185. Therefore, the appeal is dismissed without prejudice and the cause remanded to allow the district court to rule upon appellant’s motion for a certificate of probable cause.

DISMISSED and REMANDED.

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*1317 PER CURIAM:

Since the district court has not ruled on the appellant’s motion for a certificate of probable cause, this appeal was improvidently docketed. Lacking such certificate, this Court is without jurisdiction to consider the appeal. Rule 22(b), Federal Rules of Appellate Procedure; 28 U.S.C. § 2253; Welch v. Texas Board of Parole and Pardon, 5 Cir. 1972, 460 F.2d 298; Hines v. Pitcher, 5 Cir. 1971, 440 F.2d 792. This Court may not make the initial determination of whether a certificate of probable cause should be granted. Lee v. Washington Parish, 5 Cir. 1973, 476 F.2d 285; Stewart v. Beto, 5 Cir. 1971, 451 F.2d 185. Therefore, the appeal is dismissed without prejudice and the cause remanded to allow the district court to rule upon appellant’s motion for a certificate of probable cause.

DISMISSED and REMANDED.

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565 F.2d 1316, 1978 U.S. App. LEXIS 13110, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eddie-r-mckibben-v-joe-s-hopper-warden-georgia-state-prison-ca5-1978.

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