Weaver v. State of Texas, 72-2208.
Decision Date | 10 November 1972 |
Docket Number | No. 72-2208.,72-2208. |
Parties | Don H. WEAVER, Petitioner-Appellant, v. STATE OF TEXAS et al., Respondents-Appellees. |
Court | U.S. Court of Appeals — Fifth Circuit |
Harry H. Walsh, Staff Counsel for Inmates, Texas Dept. of Corrections, James Randle, Inmate Counsel, Texas Dept. of Corrections, Huntsville, Tex., for petitioner-appellant.
Crawford Martin, Atty. Gen., Ben M. Harrison, Asst. Atty. Gen., Austin, Tex., for respondents-appellees.
Before BELL, AINSWORTH and DYER, Circuit Judges.
ON PETITION FOR REHEARING
On petition for rehearing Weaver asserts that his appeal was timely taken and should not have been dismissed. While the docket entry shows that his notice of appeal was filed on June 1, 1972, and that the order denying his petition for writ of habeas corpus was entered on February 29, 1972, Weaver points to the notarization of the notice of appeal as having been executed on March 28, 1972, and alleges that it was mailed on that date so that it should have been received by the Clerk of the district court on March 29, 1972.
In these circumstances the petition for rehearing is granted, the case is remanded to correct the record or to permit Weaver within thirty days to request the district court to extend the time for appeal (under Federal Rules of Appellate Procedure 4(a)) on showing excusable neglect. Pending the outcome, we will retain jurisdiction. James Bryant v. Marion J. Elliott, 5 Cir. 1972, 467 F.2d 1109 1972.
To continue reading
Request your trial-
Rothman v. U.S., 74-1240
...of appeals retained jurisdiction pending a determination of excusable neglect by the district court. Moreover, in Weaver v. State of Texas, 469 F.2d 1314 (5th Cir. 1972), not only was jurisdiction retained but the petition for rehearing was granted.I believe that on the present record, limi......
-
Alley v. Dodge Hotel
...12 L.Ed.2d 760 (1964). In these circumstances, we adopt an approach similar to that employed by the Fifth Circuit in Weaver v. Texas, 469 F.2d 1314 (5th Cir. 1972), and remand the record to the District Court for an inquiry into the reasons for this discrepancy. Unless the evidence shows th......
-
U.S. v. Stolarz, 76-1857
...433 (5th Cir. 1974); Tuley v. Heyd, 492 F.2d 788 (5th Cir. 1974); Bryant v. Elliot, 467 F.2d 1109 (5th Cir. 1972); Weaver v. State of Texas, 469 F.2d 1314 (5th Cir. 1972). See also Johnson v. United States, 132 U.S.App.D.C. 4, 405 F.2d 1072 (1968).4 Appellant is represented by another couns......
-
Sanchez v. Dallas Morning News
...pending the outcome below. See Cramer v. Wise, 5 Cir., 1974, 494 F.2d 1185; Tuley v. Heyd, 5 Cir., 1974, 492 F.2d 788; Weaver v. Texas, 5 Cir., 1972, 469 F.2d 1314; Bryant v. Elliot, 5 Cir., 1972, 467 F.2d REMANDED FOR FURTHER PROCEEDINGS. 1 Since the order appealed from was entered on June......