Kapsalis v. Wilson

Decision Date09 October 1967
Docket NumberNo. 21052.,21052.
Citation380 F.2d 365
PartiesDimitri KAPSALIS, Appellant, v. Lawrence E. WILSON, Warden, California State Prison, San Quentin, California, Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Dimitri John Kapsalis, in pro. per.

Thomas C. Lynch, Atty. Gen., John T. Murphy, James B. Cuneo, Deputy Attys., Gen., San Francisco, Cal., for appellee.

Before BARNES and JERTBERG, Circuit Judges, and HILL,* District Judge.

Certiorari Denied October 9, 1967. See 88 S.Ct. 180.

PER CURIAM:

Appellant, in penal custody of the State of California following his conviction in 1963 of first degree murder, appeals from an order of the United States District Court for the Northern District of California, Southern Division, denying his application for the writ of habeas corpus. In denying the application, the district court did not issue an order to show cause and did not hold a hearing.

Appellant was convicted after a plea of guilty (Appellant's Brief, p. 1; Appellee's Brief, p. 2), and was sentenced to life imprisonment (Tr. 2). He was represented by counsel at his arraignment, plea of guilty and sentencing. (T.R. p. 8.)

Appellant did not appeal his conviction, but he did apply to the state courts for habeas corpus. (Tr. 5-6).

Appellant filed his application below and his briefs on appeal in pro. per., and he proceeds in forma pauperis.

Appellee's argument that the appeal should be dismissed because of appellant's failure to comply with the requirements of 28 U.S.C. § 2107 and Rule 73(a), Fed.R.Civ.P., is sound. Those provisions provide that notice of appeal must be filed within 30 days of the entry of the order appealed from; the district court, however, can extend this period to 60 days. This time requirement applies to habeas corpus applications, see Poe v. Gladden, 287 F.2d 249 (9th Cir. 1961), Pledger v. United States, 260 F.2d 471 (6th Cir. 1958), Nethery v. Culver, 259 F.2d 41 (5th Cir. 1958), even though the petitioner is not represented by counsel, Application of Cameron, 247 F.2d 775 (9th Cir. 1957), cert. denied, 355 U.S. 917, 78 S.Ct. 347, 2 L.Ed.2d 277 (1958). And the time limit cannot be extended by the parties or by order of court. United States ex rel. Lutz v. Ragen, 171 F.2d 788 (7th Cir. 1949), cert. denied, 337 U.S. 910, 69 S.Ct. 1044, 93 L.Ed. 1722 (1949). Thus the fact that a certificate of probable cause was issued does not save the appeal; the certificate was improvidently granted. See Poe v. Gladden, supra, 287 F.2d at 251.

It seems that the only flexibility in applying this requirement in habeas corpus cases is that courts are liberal in accepting informal documents as a notice of appeal. See Poe v. Gladden, supra, 287 F.2d at 251. That liberality is of no avail in this case: the order denying relief was entered on January 7, 1966 (Tr. 19), and appellant made no attempt to appeal until more than three months had elapsed — his notice of appeal was dated April 13, 1966 (Tr. 22) and...

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5 cases
  • U.S. v. Palmer
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 19 Julio 2002
    ...361 U.S. 220, 229, 80 S.Ct. 282, 288, 4 L.Ed.2d 259 (1960)). It applies to a pro se section 2255 motion as well. See Kapsalis v. Wilson, 380 F.2d 365, 366 (9th Cir.) (rejecting pro se petitioner's appeal as untimely), cert. denied, 389 U.S. 878, 88 S.Ct. 180, 19 L.Ed.2d 168 (1967). Were we ......
  • Jones v. U.S., 88-15602
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 12 Septiembre 1990
    ...entry of a final judgment); U.S. v. Angelone, 894 F.2d 1129 (9th Cir.1990) (rejecting petitioner's appeal as untimely), Kapsalis v. Wilson, 380 F.2d 365 (9th Cir.1967) (same). 3 An order is final when it "ends the litigation on the merits and leaves nothing for the court to do but execute t......
  • Shelby v. Phend
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 22 Julio 1971
    ...in this court. F.R.A.P. 31. We have already ruled on this question. See Order, September 3, 1970. Appellee's reliance on Kapsalis v. Wilson, 380 F.2d 365 (9th Cir. 1967) and Stewart v. Bishop, 403 F.2d 674 (8th Cir. 1968), cases involving untimely notices of appeal, is misplaced. The timely......
  • McDaniel v. Wainwright, 26597.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 18 Diciembre 1968
    ...has no jurisdiction of the appeal. Rules 4(a), 26(b), F.R.App.P.; Allen v. Wainwright, 384 F.2d 745, (5th Cir. 1967); Kapsalis v. Wilson, 380 F.2d 365 (9th Cir. 1967), cert. denied 389 U.S. 878, 88 S.Ct. 180, 19 L.Ed.2d 168 The appellee's motion to dismiss the appeal is granted. ...
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