Sylvester Tribbitt v. Louie L. Wainwright

Fifth Circuit

Sylvester Tribbitt v. Louie L. Wainwright

462 F.2d 600, 1972 U.S. App. LEXIS 8766

CourtCourt of Appeals for the Fifth Circuit

DecidedJune 27, 1972

Docket72-1611

StatusPublished

Cited by10 cases

This text of 462 F.2d 600 (Sylvester Tribbitt v. Louie L. Wainwright) 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.

Bluebook

Sylvester Tribbitt v. Louie L. Wainwright, 462 F.2d 600, 1972 U.S. App. LEXIS 8766 (5th Cir. 1972).

Pincite

Opinion

PER CURIAM:

This appeal follows the district court’s denial of habeas corpus relief to appel *601 lant, a prisoner of the State of Florida. The appeal must be dismissed for want of jurisdiction.

The district court entered its order denying appellant’s petition for habeas corpus on October 12, 1971. The first indication given by appellant that he desired to appeal was a motion for certificate of probable cause filed in this Court on January 17, 1972, which was returned to appellant with the advice to present it to the court below. Thereafter, on February 4, 1972, appellant filed his motion for certificate of probable cause and leave to appeal in forma pau-peris in the district court.

Rule 4(a), Fed.R.App.P., requires that notice of appeal be filed within 30 days from the date of entry of judgment or order sought to be appealed. This time period may be extended an additional 30 days upon a showing of excusable neglect. Jackson v. Decker, 5th Cir. 1971, 451 F.2d 348; Dunn v. Henderson, 5th Cir. 1971, 446 F.2d 1398; Gann v. Smith, 5 Cir. 1971, 443 F.2d 352; Bean v. Wainwright, 5th Cir. 1971, 437 F.2d 112. Even construing appellant’s motion addressed to this Court as a notice of appeal, it is clear that it was not presented until 37 days after the 60-day maximum period had elapsed. The motions in the district court were not presented until 55 days beyond such period.

Appellant stated in his motion before the district court that he was prevented from filing a notice of appeal through the actions of prison authorities. Assuming that this fact, if established, would support allowing appellant’s belated appeal pursuant to Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964), appellant’s bald allegation, in the absence of evidence before or findings by the district court, cannot create jurisdiction in the instant case.

Since the record clearly shows the appellant filed nothing that could be construed as a notice of appeal until some 37 days beyond the maximum extended time period set forth in Rule 4(a) and has neither presented nor alleged any facts tending to show he was prevented from doing so by the actions of prison authorities, this Court has no jurisdiction to entertain his appeal.

Dismissed.

Free access — add to your briefcase to read the full text and ask questions with AI

PER CURIAM:

This appeal follows the district court’s denial of habeas corpus relief to appel *601 lant, a prisoner of the State of Florida. The appeal must be dismissed for want of jurisdiction.

The district court entered its order denying appellant’s petition for habeas corpus on October 12, 1971. The first indication given by appellant that he desired to appeal was a motion for certificate of probable cause filed in this Court on January 17, 1972, which was returned to appellant with the advice to present it to the court below. Thereafter, on February 4, 1972, appellant filed his motion for certificate of probable cause and leave to appeal in forma pau-peris in the district court.

Rule 4(a), Fed.R.App.P., requires that notice of appeal be filed within 30 days from the date of entry of judgment or order sought to be appealed. This time period may be extended an additional 30 days upon a showing of excusable neglect. Jackson v. Decker, 5th Cir. 1971, 451 F.2d 348; Dunn v. Henderson, 5th Cir. 1971, 446 F.2d 1398; Gann v. Smith, 5 Cir. 1971, 443 F.2d 352; Bean v. Wainwright, 5th Cir. 1971, 437 F.2d 112. Even construing appellant’s motion addressed to this Court as a notice of appeal, it is clear that it was not presented until 37 days after the 60-day maximum period had elapsed. The motions in the district court were not presented until 55 days beyond such period.

Appellant stated in his motion before the district court that he was prevented from filing a notice of appeal through the actions of prison authorities. Assuming that this fact, if established, would support allowing appellant’s belated appeal pursuant to Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964), appellant’s bald allegation, in the absence of evidence before or findings by the district court, cannot create jurisdiction in the instant case.

Since the record clearly shows the appellant filed nothing that could be construed as a notice of appeal until some 37 days beyond the maximum extended time period set forth in Rule 4(a) and has neither presented nor alleged any facts tending to show he was prevented from doing so by the actions of prison authorities, this Court has no jurisdiction to entertain his appeal.

Dismissed.

Cite This Page — Counsel Stack

Bluebook (online)

462 F.2d 600, 1972 U.S. App. LEXIS 8766, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sylvester-tribbitt-v-louie-l-wainwright-ca5-1972.

Opinion

Related

Cite This Page — Counsel Stack