Kirksey v. United States, Misc. No. 403.
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
| Writing for the Court | STEPHENS, , and PRETTYMAN and BAZELON, Circuit |
| Citation | 219 F.2d 499,94 US App. DC 393 |
| Parties | Jerome KIRKSEY, Petitioner v. UNITED STATES of America, Respondent. |
| Docket Number | Misc. No. 403. |
| Decision Date | 07 October 1954 |
94 US App. DC 393, 219 F.2d 499 (1954)
Jerome KIRKSEY, Petitioner
v.
UNITED STATES of America, Respondent.
Misc. No. 403.
United States Court of Appeals District of Columbia Circuit.
Decided October 7, 1954.
Mr. Ashley Sellers, Washington, D. C., appointed by this Court subsequent to the filing of the petition for leave to appeal in forma pauperis, for petitioner.
Mr. Gerard J. O'Brien, Asst. U. S. Atty., Washington, D. C., with whom appeared Mr. Leo A. Rover, U. S. Atty., and Mr. William J. Peck, Asst. U. S. Atty., Washington, D. C., at the time the petition was filed, for respondent.
Before STEPHENS, Chief Judge, and PRETTYMAN and BAZELON, Circuit Judges.
STEPHENS, Chief Judge.
This is a petition by Jerome Kirksey for leave to appeal in forma pauperis from a conviction and sentence in the United States District Court for the District of Columbia and from an order of the same court denying a motion to vacate sentence and to correct clerical errors and denying an application for leave to appeal in forma pauperis.1 We conclude that the petition must be denied because of Kirksey's failure to file in the District Court a timely notice of appeal or its legal equivalent.2
On March 16, 1953, Kirksey was convicted on separate counts of assault with a dangerous weapon and housebreaking. On March 17, the District Court imposed sentence (two concurrent terms of 16 to 48 months imprisonment). The effective date of the sentence, i. e., the date of its actual entry, was March 19. On March 26, Kirksey moved for a new trial; that motion was denied on April 6. By a letter dated June 30 the Clerk of the District Court wrote Kirksey: "Your motion for a new trial was denied by Judge T. Blake Kennedy April 16, 1953 sic. According to the records in this office you were notified of this action on April 6, 1953." Notwithstanding this statement, there is no record in the office of the District Court Clerk that Kirksey was notified prior to the June 30 letter of the denial of his motion for a new trial.3 On July 23, Kirksey filed in the District Court a "Motion to vacate sentence and correction of clerical errors" and an affidavit in forma pauperis; in that affidavit he made application for leave to appeal in forma pauperis from his conviction and sentence.4 The District Court denied the motion and application on August 7, and the Clerk, by a letter dated August 10, notified Kirksey of that denial. The instant petition for leave to appeal in forma pauperis from the conviction and sentence and from the order of August 7 was received by this Court of Appeals on October 8 and was filed on October 9.
The attempted appeal from the conviction and sentence: (1) Rule 37 (a) (2) of the Federal Rules of Criminal Procedure provides, so far as here pertinent:
An appeal by a defendant may be taken within 10 days after entry of the judgment or order appealed from, but if a motion for a new trial or in arrest of judgment has been made within the 10-day period an appeal from a judgment of conviction may be taken within 10 days after entry of the order denying the motion. . . .
Since Kirksey's motion for new trial filed on March 26 was denied on April 6 he had, assuming the motion was timely, ten days from April 6 in which to appeal. His petition for leave to appeal in forma pauperis filed on July 23 was therefore too late.5
(2) The letter of June 30 from the District Court Clerk incorrectly informed Kirksey that his motion for new trial had been denied on April 16. But this does not make it possible to bring Kirksey's present petition for leave to appeal in forma pauperis from the conviction and sentence within the ruling of this court in West v. United States, ___ U.S.App.D.C. ___, ___ F.2d ___, April 1, 1954. In that case the Clerk of the District Court, on October 20, 1952, wrote a letter notifying West that a motion which he had filed under 28 U.S.C. § 2255 (1952), to set aside a conviction and to vacate a judgment, had been denied, but the Clerk's letter did not state the date of the denial which was in fact October 13. Within sixty days (the time within which an appeal must be taken from a denial of a motion to vacate under § 2255) of October 20, West lodged with the Clerk of this...
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...App.D.C. 212, 188 F.2d 41; accord, Shannon v. United States, 93 U.S.App.D.C. 4, 206 F.2d 479; and see Kirksey v. United States, 94 U.S.App.D.C. 393, 395, note 2, 219 F.2d 499, 500, note 2. This court thus obtained jurisdiction to review the judgment of conviction. The fact that the notice o......
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