Ryals v. Estelle

Citation661 F.2d 904
Decision Date18 November 1981
Docket NumberNo. 81-1217,81-1217
PartiesRoger Dale RYALS, Petitioner-Appellant, v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellee. Summary Calendar.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Roger Dale Ryals, pro se.

Douglas M. Becker, Charles A. Palmer, Asst. Attys. Gen., Austin, Tex., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before GEE, GARZA and TATE, Circuit Judges.

PER CURIAM:

Appellant, Roger Ryals, is currently serving life imprisonment for theft and unauthorized use of a motor vehicle; two prior convictions were used for enhancement. The instant pro se appeal stems from the district court's denial of his application for writ of habeas corpus. Because the notice of appeal was not timely filed, and because such filing is a necessary prerequisite for appellate review, this appeal must be dismissed.

On appeal, Ryals has asserted numerous theories under which he claims habeas corpus relief should be granted. 1 In its response, appellee attempted to negate those theories. What both parties failed to recognize, however, was that Ryals neglected to timely file his notice of appeal within the time limit set forth in Fed.R.App.P. 4(a). Under that Rule, notice of appeal for cases such as the one before us must be filed with the clerk of the district court within 30 days after the date of entry of the judgment or order appealed from. Here, appellant had not filed an appeal until 21 days after the 30-day time limit for filing had expired. 2 Furthermore, no motion for an extension of the time had been filed.

Since Fed.R.App.P. 4(a) was amended in August of 1979, this circuit has held a tight rein on the timely-filed requirement. As was pointed out in Sanchez v. Board of Regents of Texas Southern University, 625 F.2d 521, 523 (5th Cir. 1980), the amended rule prohibits 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. In other words, within 60 days from the date of judgment. No such motion was filed here.

Normally, the discussion of this issue would end here; however, one further point needs to be laid to rest. Subsequent to the expiration of the 30-day time limitation, and after appellant had filed this appeal, the district court granted a certificate of probable cause for appeal. 3 In the recent decision of Barksdale v. Blackburn, 647 F.2d 630, 631-32 (5th Cir. 1981), this court stated that

We cannot construe the district court's grant of a certificate of probable cause for appeal ... as an implicit finding by that court of excusable neglect in the tardy filing of the notice of appeal, for neither the question of timeliness of filing nor that of an excuse for failure to file timely was presented to the district court.

But in a slip opinion issued one month after Barksdale, another panel indicated that a district court's granting of a certificate of probable cause could be construed as a finding of excusable neglect in order to make a late-filed notice of appeal timely. Starling v. Estelle, 651 F.2d 1082 (5th Cir., 1981). 4 Although the advance sheet publication deleted the reference to the certificate of probable cause as a finding of excusable neglect, 5 it impliedly construed it by reaching the merits of the case. Implicitly, then, it would seem that a conflict exists between Starling and Barksdale. That conflict, however, is in appearance only. It has long been a rule of this court that no panel of this circuit can overrule a decision previously made by another. The proper procedure would have been for the court or an appellant to petition for rehearing en banc. Neither was done in...

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31 cases
  • Delaune v. Saint Marine Transp. Co.
    • United States
    • U.S. District Court — Eastern District of Louisiana
    • November 7, 1990
    ...Fifth Circuit to the Louisiana Supreme Court available. 42 See Olympic Towing, 419 F.2d at 236. See generally Ryals v. Estelle, 661 F.2d 904, 906 (5th Cir. Nov. 1981) (per curiam). 43 419 F.2d 230, 236 (5th Cir.), reh'g en banc denied, 419 F.2d 238 (5th Cir.1969) (per curiam) (7-6), cert. d......
  • Neal v. Barisich, Inc., Civil A. No. 88-3119.
    • United States
    • U.S. District Court — Eastern District of Louisiana
    • February 28, 1989
    ...in Dennis and Law (as well as perhaps Hornsby and S/S Helena), which are to the contrary on the same issue. Compare Ryals v. Estelle, 661 F.2d 904, 906 (5th Cir.1981) ("It has long been a rule of the Fifth Circuit that no panel of this circuit can overrule a decision previously made by anot......
  • Johnson v. Kegans
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • April 24, 1989
    ...decisions inconsistent with Cruz are not precedential, since one panel of this Court may not overrule another. See Ryals v. Estelle, 661 F.2d 904, 906 (5th Cir.1981). Further, all our decisions dealing with the Texas Board apply absolute immunity. Finally, as we noted in Serio, 821 F.2d at ......
  • Goodwin v. Johnson
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • December 23, 1997
    ...long been a rule of this court that no panel of this circuit can overrule a decision previously made by another." Ryals v. Estelle, 661 F.2d 904, 906 (5th Cir. Nov. 1981). Additionally, Duhamel and Sharp are both pre-Fretwell decisions. Fretwell makes clear that their limited focus on "mere......
  • Request a trial to view additional results
1 books & journal articles
  • Discrimination by managers and supervisors: recognizing agent liability under Title VII.
    • United States
    • University of Pennsylvania Law Review Vol. 143 No. 2, December 1994
    • December 1, 1994
    ...decision previously made by another [panel]" implies that Hamilton remains good law. Harvey, 913 F.2d at 228 n.2 (citing Ryals v. Estelle, 661 F.2d 904, 906 (5th Cir. Nov. 1981)). In Harvey, the Fifth Circuit attempted to reconcile these inconsistent rulings by stating that the Hamilton cou......

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