JAMES BRYANT, PETITIONER-APPELLANT,
v.
MARION J. ELLIOTT, WARDEN OF ATMORE STATE PRISON, RESPONDENT-APPELLEE
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The court held that the appeal, though slightly late, should be remanded to allow the petitioner to seek an extension of time based on excusable neglect.
Petitioner appealed the denial of habeas corpus, but the notice of appeal was filed slightly after the 30-day deadline under Rule 4(a). The petitioner…
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PER CURIAM.
In this appeal from the denial of ha-beas corpus the preliminary question is whether the appeal was timely, since Rule 4(a) of the Federal Rules of Appellate Procedure requires petitioner to file a notice of appeal with the Clerk of the District Court within thirty days of the entry of the District Court’s order. Here the petitioner’s notice of appeal was less than five days overdue.
Petitioner appealed in forma pauperis, apparently without the assistance of an attorney. While we do not suggest that ignorance alone is an excuse, we are influenced by doubts that he understood Rule 4(a)’s provision relative to the District Court extending the time upon a showing of excusable neglect.
Under these circumstances we remand the case to permit petitioner within thirty days to request the District Judge to extend the time for appeal (under Rule 4(a)) on showing excusable neglect. Pending the outcome, jurisdiction will be retained by us. Evans v. Jones, 4 Cir., 1966, 366 F. 2d 772; C. Wright, Law of Federal Courts 467 (1970). Cf. Weaver v. Texas, 5 Cir., 1972, 464 F. 2d 562.
Remanded.
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Cited By (13 total)
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Alley v. Dodge Hotel, 501 F.2d 880 (D.C. Cir. 1974)
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Birl v. Estelle, 660 F.2d 592 (5th Cir. 1981)
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United States v. Stolarz, 547 F.2d 108 (9th Cir. 1976)
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Isbell Enters., Inc. v. Citizens Cas. Co. OF NEW York, 431 F.2d 409 (5th Cir. 1970)
- Evans v. Jones, 366 F.2d 772 (4th Cir. 1966)
- Weaver v. State OF Tex., 464 F.2d 562 (5th Cir. 1972)
- Hampson v. Bucyrus-Erie Co. & Ctr. Foundry & Mach. Co., 464 F.2d 562 (3d Cir. 1972)