419 F2d 1326 Lawrence v. L Wainwright

419 F.2d 1326

David LAWRENCE, Plaintiff-Appellant,
v.
Louie L. WAINWRIGHT, Director, Division of Corrections,
State of Florida, Defendant-Appellee.

No. 26767.

United States Court of Appeals Fifth Circuit.

Nov. 24, 1969, Rehearing Denied and Rehearing En Banc Denied
Jan. 12, 1970, Certiorari Denied April 6, 1970,
See 90 S.Ct. 1281.

David Lawrence, pro se.

Paul E. Gifford, Miami, Fla. (Ct. Apptd.), for appellant.

Earl Faircloth, Atty. Gen. of Florida, Miami, Fla., Arden M. Siegendorf, Asst. Atty. Gen., Miami, Fla., for appellee.

Before RIVES, BELL, and DYER, Circuit Judges.

PER CURIAM:

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1

This appeal, filed sixty three days after the denial of the petition for writ of habeas corpus, is dismissed.1 See Allen v. Wainwright, 5 Cir., 1967, 384 F.2d 745. There is no showing that the failure to file the notice of appeal within the extended time period of 30 days provided under Rule 4(a), Federal Rules Appellate Procedure, was attributable to anyone other than appellant. We thus deem the case of Fallen v. United States, 1964, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760, to be inapplicable.

2

As to appellant's right to file an additional petition for writ on the same or other grounds in the District Court, see Sanders v. United States, 1963, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148.

3

Appeal dismissed.

4

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

PER CURIAM:

5

The Petition for Rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is denied.

1

This appeal was dismissed by order of this court dated September 25, 1968. Lawrence v. Wainwright, 5 Cir., 1968, 401 F.2d 177. That order was vacated on November 20, 1968. The court then ordered that the motion be carried with the case for disposition. Council was appointed to represent appellant. Lawrence v. Wainwright, 5 Cir., 1968, 404 F.2d 614