Way v. Gaffney, No. 319-70.
| Decision Date | 20 January 1971 |
| Docket Number | No. 319-70. |
| Citation | 434 F.2d 996 |
| Parties | Theodore WAY, Appellant, v. R. J. GAFFNEY, Warden, Kansas State Penitentiary, Lansing, Kansas, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Kent Frizzell, Atty. Gen., and Edward G. Collister, Jr., Asst. Atty. Gen., for appellee.
Theodore Way, pro se.
Before LEWIS, Chief Judge, PICKETT, Circuit Judge, and KERR, District Judge.
This state prisoner habeas case is once again before us. In his petition, filed in April, 1969, Way alleged that his appeal to the Kansas Supreme Court from a 1967 conviction and sentence had not been docketed, although eighteen (18) months had passed since the notice of appeal. In Way v. Crouse, 421 F.2d 145 (10th Cir. 1970), we held that the district court should not have dismissed the petition without inquiring into the facts and circumstances underlying the alleged delay, although we noted that the cause might well be mooted by the decision of the state supreme court, rendered December 6, 1969, affirming Way's conviction.
Upon remand, and by order entered March 31, 1970, the district court found the question of delay to have been mooted, and again dismissed the petition. Way's notice of appeal, dated April 30, was received by the district court on May 7, accompanied by a motion for an extension of time in which to appeal, dated May 5. He recited in some detail his unavailing efforts to have his papers forwarded through prison mailing channels within the prescribed time. By order entered May 8, the district court found that "petitioner makes a sufficient showing of excusable neglect accounting for the delay in filing his notice of appeal," and extended the time therefor to May 7, the date of its receipt.
Where a motion for an extension of time in which to appeal is not made within the initial thirty (30) days allowed by Rule 4(a), F.R.App.P., the trial court is without power to act without giving notice to all adverse parties. Cohen v. Plateau Natural Gas Co., 303 F.2d 273 (10th Cir. 1962), cert. denied, 371 U.S. 825, 83 S.Ct. 45, 9 L.Ed.2d 64; Plant Economy, Inc. v. Mirror Insulation Co., 308 F.2d 275 (3d Cir. 1962); Northumberland Mining Co. v. Standard Accident Insurance Co., 193 F.2d 951 (9th Cir. 1952); notes of the Advisory Committee on Rule 4(a), F.R.App.P. Accordingly, as in Cohen, supra, "the trial court's ex part order extending the time for appeal was therefore void ab initio, and appellant's...
To continue reading
Request your trial
-
Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Kurtenbach, 75--1002
...request for an extension under Rule 4(a) must be made by motion. Files v. Rockford, 440 F.2d 811, 816 (7th Cir. 1971); Way v. Gaffney, 434 F.2d 996, 997 (10th Cir. 1970); 9 J. Moore, Federal Practice $204.13(3) (2d ed. 1975). The record does not reflect that any such motion was filed with t......
-
Oda v. Transcon Lines Corp., 80-2341
...grant the motion ex parte. Fed.R.App.P. 4(a)(5). Therefore, the court's order granting the motion was void ab initio. Way v. Gaffney, 434 F.2d 996, 997 (10th Cir. 1970); Cohen v. Plateau Natural Gas Co., 303 F.2d 273, 274 (10th Cir.) (decided under Fed.R.Civ.P. 73(a)), cert. denied, 371 U.S......