Thomas v. United States, 18936.
| Decision Date | 04 March 1964 |
| Docket Number | No. 18936.,18936. |
| Citation | 328 F.2d 607 |
| Parties | William THOMAS, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Richard M. Buxbaum, Berkeley, Cal., for appellant.
Sylvan A. Jeppesen, U. S. Atty., and Jim Christensen, Asst. U. S. Atty., Boise, Idaho, for appellee.
Before POPE, MERRILL and DUNIWAY, Circuit Judges.
On March 23, 1962 Thomas was adjudged guilty pursuant to the verdict of a jury of violation of section 2314, Title 18 U.S.Code. On March 30, 1962 he moved for judgment of acquittal, and in the alternative, for a new trial. On June 20, 1962 the court denied the motion. We are unable to find in the record, and the trial judge, pursuant to a prior order of this court, has determined that there is not in the record and was not filed within the time prescribed by law, any document which, by the most liberal construction, can be construed to be a notice of appeal. Under these circumstances, this court lacks jurisdiction of the appeal and it must be dismissed even though another panel of this court has heretofore granted leave to proceed with the appeal in forma pauperis. The lack of a timely notice of appeal is jurisdictional. United States v. Robinson, 1959, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed. 2d 259.
The transcript contains a motion to vacate and set aside the judgment, filed in the lower court on September 27, 1962, pursuant to 28 U.S.C. § 2255, and a motion for leave to proceed with that motion in forma pauperis. The motion for leave to proceed in forma pauperis was granted and the motion itself was denied on October 18, 1962. We do not pass upon the status of this motion or on any purported appeal therefrom, having instructed counsel for Thomas to advise this court, following our disposition of the appeal from the judgment of conviction, as to what further steps, if any, he wishes to take, either in this court or in the trial court, in relation to the motion made under 28 U.S.C. § 2255.
It is ordered that the appeal from the judgment of conviction be and it is hereby dismissed.
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Smith v. United States
...is both mandatory and jurisdictional. United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960); Thomas v. United States, 328 F.2d 607 (9th Cir. 1964). Tested by this requirement alone, Smith's notice is clearly untimely and, consequently, this court is without jurisdictio......