Barksdale v. Blackburn, 80-3782
| Decision Date | 12 June 1981 |
| Docket Number | No. 80-3782,80-3782 |
| Citation | 647 F.2d 630 |
| Parties | Woodrow BARKSDALE, II, Petitioner-Appellant, v. Frank BLACKBURN, Warden, Respondent-Appellee. Summary Calendar. . Unit A |
| Court | U.S. Court of Appeals — Fifth Circuit |
Woodrow Barksdale, II, pro se.
Wm. J. Guste, Jr., Atty. Gen., Baton Rouge, La., J. Kevin McNary, Asst. Dist. Atty., New Orleans, La., for respondent-appellee.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before GEE, RUBIN and RANDALL, Circuit Judges.
A Louisiana prisoner serving an eight-year sentence in the state penitentiary at Angola for simple burglary enhanced by two prior felony convictions seeks habeas corpus. Because the notice of appeal was not timely filed, and because such filing is indispensable to our exercise of jurisdiction, we must dismiss the appeal.
The district court's order dismissing the habeas petition was filed August 8, 1980. The notice of appeal was mailed on September 5, 1980, but was not received by the district court until September 9, 1980, one day after the end of the period for filing a notice of appeal under Fed.R.App.P. 4(a).
In the past we have permitted reliance on the normal course of mail delivery to excuse an otherwise untimely filing of notice of appeal. However, as we pointed out in Sanchez v. Board of Regents of Texas Southern University, 625 F.2d 521 (5th Cir. 1980), Fed.R.App.P. 4 was amended in 1979 and it now precludes the granting of relief from an untimely filing unless a motion to excuse the delay is itself made no later than thirty days after the expiration of the period prescribed in Rule 4(a) for filing a notice of appeal, that is, within sixty days from the date of judgment.
Under the preamendment case law, we permitted the request for relief from a tardy filing of notice of appeal to be made for the first time in this court even after the expiration of a second thirty day period following the original thirty day filing period provided by Rule 4(a). We treated the late-filed notice of appeal as a motion to extend the time for filing. In Sanchez the tardy filing occurred after the effective date of the amendment to Rule 4. The appellant moved this court to remand to the district court to determine whether the tardy filing resulted from excusable neglect. Relying on the preamendment jurisprudence, we there remanded to the district court for a finding on the excusable neglect issue despite the fact that the motion for relief from...
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Barksdale v. Blackburn, 80-3782
...habeas corpus. We dismissed the appeal from the district court's denial of the petition as not being timely filed, Barksdale v. Blackburn, 647 F.2d 630 (5th Cir. 1981). The United States Supreme Court, however, vacated that dismissal and remanded the case for our consideration. --- U.S. ---......
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Mann v. Lynaugh
...cause to appeal apparently after the second thirty-day period expired. In Ryals, we relied on our decision in Barksdale v. Blackburn, 647 F.2d 630, 631-32 (5th Cir. June 1981), vacated on other grounds, 454 U.S. 1118, 102 S.Ct. 962, 71 L.Ed.2d 106 (1981), for the proposition "We cannot cons......