Lindsey v. Perini, 19025.

• Citation: 409 F.2d 1341
• Decision Date: 08 May 1969
• Docket Number: No. 19025.,19025.
• Parties: Gus LINDSEY, Jr., Petitioner-Appellant, v. E. P. PERINI, Superintendent, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

409 F.2d 1341 (1969)

Gus LINDSEY, Jr., Petitioner-Appellant, v. E. P. PERINI, Superintendent, Respondent-Appellee.

No. 19025.

United States Court of Appeals Sixth Circuit.

May 8, 1969.

Gus Lindsey, Jr., in pro. per. lant.

Paul W. Brown, Atty. Gen., Leo J. Conway, Asst. Atty. Gen., Columbus, Ohio, for appellee.

Before McCREE and COMBS, Circuit Judges, and CECIL, Senior Circuit Judge.

PER CURIAM.

This is an appeal by Gus Lindsey, Jr., petitioner-appellant from an order of the United States District Court for the Northern District of Ohio, Western Division, denying his petition for a writ of habeas corpus. The appellant is confined in the Marion Correctional Institution at Marion, Ohio.

The appellant's petition was denied by an opinion and order of the district judge on July 27, 1967. On August 29, 1967, the appellant filed a motion for reconsideration, or in the alternative for a certificate of probable cause. He wrote a letter to the judge in support of this motion. The motion for reconsideration was overruled and the application for a certificate of probable cause was denied on September 20, 1967.

A year later, on September 10, 1968, the appellant filed a paper denominated, "Motion For Leave To File A Belated Appeal In Forma Pauperis." This paper bore a heading, "United States Court of Appeals for the Sixth Circuit", but was filed in the District Court. The appellant alleges that at the time he could have appealed as a matter of right he was unaware of his right to appeal a final judgment and order of the District Court, and that he was not informed of such right. He filed a Notice of Appeal in the District Court on the same day.

The District Judge stated that the appellant had filed a motion for a belated appeal and by implication for reconsideration of his former application for a certificate of probable cause. The judge then granted a certificate with the following statement:

"Having reviewed the memorandum opinion which accompanied the order of dismissal and finding that it is based upon decisional law which is in apparent conflict with the recent decision of the United States Supreme Court in Mempa v. Rhay, 389 U.S. 128 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), it is now found that petitioner presents an issue for appeal which is not `plainly frivolous\', and this court hereby certifies that petitioner, Gus Lindsey, Jr., has probable cause for such an appeal."

We know of no provision for a belated appeal from the United States District Court to the United States Court of Appeals nor is any authority cited by either the district judge or the appellant. A timely notice of appeal is jurisdictional. Gradsky v. Commissioner of Internal Revenue, 218 F.2d 703, 704, (C.A.6); Kahler-Ellis Company, etc. v. Ohio Turnpike Commission, 225 F.2d 922, (C.A.6); Stuart v. Bomar, 261 F.2d 274, 275, (C.A.6); Casalduc v. Diaz, 117 F.2d 915, 916 (C.A.1), cert. den. 314 U.S. 639, 62 S.Ct. 74, 86 L.Ed. 512; Napier v. Delaware, Lackawanna and Western R. Co., 223 F.2d 28, 31, (C.A.2); Donovan v. Esso Shipping Company, 259 F.2d 65, 68, (C.A.3), cert. den. 359 U.S. 907, 79 S.Ct. 583, 3 L.Ed. 2d 572; Lejeune v. Midwestern Ins. of Oklahoma City, Okl., 197 F.2d 149 (C. A.5); Knowles v. United States, 260 F. 2d 852, 854, (C.A.5); Allen v. Schnuckle, 253 F.2d 195, (C.A.9); Stone v. Wyoming Supreme Court, 236 F.2d 275, 276, (C.A.10); Lobato v. Pay Less Drug Stores, 261 F.2d 406, 408, (C.A.10); United States v. Buford, 165 F.Supp. 940, 941, (E.D.Wis.)...