Opinion · Court of Appeals for the Fifth Circuit

Don H. Weaver v. State of Texas

469 F.2d 1314

Type: Opinion
Court: Court of Appeals for the Fifth Circuit
Jurisdiction: Federal
Date: 1972-11-10
Topic: general

ON PETITION FOR REHEARING PER CURIAM: 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 *1315 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.

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Cited by: 9 opinions

WEAVER v. STATE OF TEXAS,469 F.2d 1314(5th Cir. 1972)

DON H. WEAVER, PETITIONER-APPELLANT, v. STATE OF TEXAS ET AL.,

RESPONDENTS-APPELLEES.

No. 72-2208.

United States Court of Appeals, Fifth Circuit.

November 10, 1972.

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.

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

Before BELL, AINSWORTH and DYER, Circuit Judges.

[1] ON PETITION FOR REHEARING

PER CURIAM:

[2] 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.

[3] In these circumstances the petition for rehearing is granted, the case is remanded to correct the record or to permitPage 1315Weaver within thirty days to request the district court to extend the time for appeal (under Federal Rules of Appellate Procedure4(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].