802 F.2d 830 (5th Cir. 1986), 86-4113, McNeil v. Blackburn

Docket Nº86-4113
Citation802 F.2d 830
Party NameJames McNEIL, Plaintiff-Appellant, v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary, Defendant-Appellee.
Case DateOctober 20, 1986
CourtUnited States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 830

802 F.2d 830 (5th Cir. 1986)

James McNEIL, Plaintiff-Appellant,

v.

Frank C. BLACKBURN, Warden, Louisiana State Penitentiary,

Defendant-Appellee.

No. 86-4113

United States Court of Appeals, Fifth Circuit

October 20, 1986

Page 831

James McNeil, pro se.

Thomas R. Willson, Asst. Dist. Atty., Alexandria, La., for defendant-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before RUBIN, RANDALL and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:

Petitioner appeals the district court's denial of his application for habeas corpus relief under 28 U.S.C. Sec. 2254. For the reasons that follow, we reverse the judgment of the district court and remand this case for further proceedings consistent with this opinion.

I.

On October 22, 1962, petitioner pled "guilty without capital punishment" in Louisiana state court to aggravated rape. He was sentenced to life imprisonment at hard labor. After exhausting his state remedies, petitioner, on May 18, 1978, filed a petition for a writ of habeas corpus in federal district court. Petitioner's only ground for the granting of the writ presented to the district court was that he was advised by his appointed counsel and by the assistant district attorney in his case that he would only have to serve ten and one-half years of the life sentence that he would receive by pleading guilty. The district court did not order the state to respond to the petition, and the state never filed an answer. On April 30, 1982, the district court denied petitioner's claim for habeas relief. Petitioner claims that he filed his notice of appeal on May 11, 1982. It was received by the district court but was returned to petitioner on May 17, 1982, because it was unsigned. Petitioner claims that he signed the notice of appeal and returned it to the district clerk's office, but it was never received by the district court. On February 28, 1983, petitioner filed a second notice of appeal, a motion for leave to proceed in forma pauperis, and an application for a certificate of probable cause.

II.

A.

Although neither party has questioned the jurisdiction of this court to hear this appeal, this is a court of limited jurisdiction and this court must, on its own motion, determine if jurisdiction is present. Thompson v. Betts, 754 F.2d 1243, 1245

Page 832

(5th Cir.1985). As noted above, the first notice of appeal filed by petitioner, although timely, 1 was returned to petitioner by the district court because the signature requirements of Federal Rule of Civil Procedure 11 were not met. A signed notice of appeal was not received within the 30 days required by the Federal Rules. See Fed.R.App.P...

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17 practice notes
  • 868 F.2d 959 (7th Cir. 1989), 87-1146, Robinson v. City of Chicago
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Seventh Circuit
    • February 21, 1989
    ...even if it does not meet the demands of Fed.R.Civ.P. 11, meets the jurisdictional requirements for appeal. See, e.g., McNeil v. Blackburn, 802 F.2d 830, 832 (5th Cir.1986) (per curiam); Lewis, supra, 784 F.2d at 831; see also Thiem v. Hertz Corp., 732 F.2d 1559, 1562 (11th Cir.1984). Plaint......
  • 825 F.2d 892 (5th Cir. 1987), 86-4661, Davis v. Butler
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • August 27, 1987
    ...taints the voluntariness of his plea." McKenzie v. Wainwright, 632 F.2d 649, 651 (5th Cir.1980). See also McNeil v. Blackburn, 802 F.2d 830, 832 (5th Cir.1986) (per curiam); Smith v. Blackburn, 785 F.2d 545, 548 (5th The district court rejected Davis's claims concerning the pardon, con......
  • Denmark v. United States, 030714 TXEDC, 6:13cv294
    • United States
    • Federal Cases United States District Courts 5th Circuit Eastern District of Texas
    • March 7, 2014
    ...by the petitioner are insufficient to make such a showing; there must be independent evidence supporting his claim. McNeil v. Blackburn , 802 F.2d 830, 833 (5th Cir. 1986); Davis v. Butler , 825 F.2d 892 (5th Cir. In this case, Denmark has failed to offer independent evidence supporting his......
  • 857 F.2d 1042 (5th Cir. 1988), 88-2413, Smith v. White
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • October 17, 1988
    ...other persons in filing a notice of appeal, should not be confused with, and is not inconsistent with, our holding in McNeil v. Blackburn, 802 F.2d 830, 832 (5th Cir.1986). There, we determined that the failure of an appellant to sign his own notice of appeal did not deprive this court of j......
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17 cases
  • 868 F.2d 959 (7th Cir. 1989), 87-1146, Robinson v. City of Chicago
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Seventh Circuit
    • February 21, 1989
    ...even if it does not meet the demands of Fed.R.Civ.P. 11, meets the jurisdictional requirements for appeal. See, e.g., McNeil v. Blackburn, 802 F.2d 830, 832 (5th Cir.1986) (per curiam); Lewis, supra, 784 F.2d at 831; see also Thiem v. Hertz Corp., 732 F.2d 1559, 1562 (11th Cir.1984). Plaint......
  • 825 F.2d 892 (5th Cir. 1987), 86-4661, Davis v. Butler
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • August 27, 1987
    ...taints the voluntariness of his plea." McKenzie v. Wainwright, 632 F.2d 649, 651 (5th Cir.1980). See also McNeil v. Blackburn, 802 F.2d 830, 832 (5th Cir.1986) (per curiam); Smith v. Blackburn, 785 F.2d 545, 548 (5th The district court rejected Davis's claims concerning the pardon, con......
  • Denmark v. United States, 030714 TXEDC, 6:13cv294
    • United States
    • Federal Cases United States District Courts 5th Circuit Eastern District of Texas
    • March 7, 2014
    ...by the petitioner are insufficient to make such a showing; there must be independent evidence supporting his claim. McNeil v. Blackburn , 802 F.2d 830, 833 (5th Cir. 1986); Davis v. Butler , 825 F.2d 892 (5th Cir. In this case, Denmark has failed to offer independent evidence supporting his......
  • 857 F.2d 1042 (5th Cir. 1988), 88-2413, Smith v. White
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • October 17, 1988
    ...other persons in filing a notice of appeal, should not be confused with, and is not inconsistent with, our holding in McNeil v. Blackburn, 802 F.2d 830, 832 (5th Cir.1986). There, we determined that the failure of an appellant to sign his own notice of appeal did not deprive this court of j......
  • Request a trial to view additional results