Gann v. Smith, 71-1201 Summary Calendar.
| Citation | 443 F.2d 352 |
| Decision Date | 19 May 1971 |
| Docket Number | No. 71-1201 Summary Calendar.,71-1201 Summary Calendar. |
| Parties | Melvin GANN, Petitioner-Appellee, v. W. D. SMITH, Jr., Respondent-Appellant |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
A. F. Summer, Atty. Gen. of Miss., Guy N. Rogers, Timmie Hancock, John M. Kinard, Sp. Asst. Attys. Gen., Jackson, Miss., for respondent-appellant.
James A. Lewis, North Miss. Rural Legal Services, Oxford, Miss., John P. Fox, Houston, Miss., for petitioner-appellee.
Before THORNBERRY, MORGAN and CLARK, Circuit Judges.
In addition to defending an appeal from the grant of a writ of habeas corpus on the merits, D.C., 318 F.Supp. 409, the petitioner-appellee moves this court to dismiss the appeal on the grounds that the trial court erroneously extended the time to file a notice of appeal in this case. We agree that no showing which would support excusable neglect was made and that the appeal should be dismissed.
The undisputed facts disclose that during the normal 30-day period of time for notice of appeal from the grant of the writ of habeas corpus provided in FRAP 4(a), the Attorney General of the State of Mississippi "after careful study and consultation with members of the Criminal Division staff, * * * made the decision that no appeal would be taken from this order." Forty-nine days after the entry of the trial court's final order, the district attorney in the district where petitioner had been convicted submitted a request to the Attorney General that an appeal be taken from the grant of the writ of habeas corpus. The Attorney General thereupon moved the trial court to grant an extension of time to file the notice of appeal and, in connection therewith, disclosed the above facts. The requested extension was granted pursuant to the provision of FRAP 4, which states: "Upon a showing of excusable neglect, the district court may extend the time for filing the notice of appeal by any party for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision."
The antecedent to this rule, Fed.R.Civ.P. 73(a), contained a requirement that an extension of time for appeal in civil cases could be granted only "upon a showing of excusable neglect based upon a failure of a party to learn of the entry of the judgment." In 1966 the clause "based on a failure of a party to learn of the entry of the judgment" was deleted. The Advisory Committee note accompanying this change stated that it was for the purpose of empowering ...
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