437 F2d 112 Bean v. L Wainwright

437 F.2d 112

Nathan BEAN, Petitioner-Appellant,
v.
Louie L. WAINWRIGHT, Director, Division of Corrections,
State of Florida, Respondent-Appellee.

No. 30620.

United States Court of Appeals, Fifth Circuit.

Jan. 7, 1971, Rehearing Denied Feb. 4, 1971.

Nathan Bean, pro se.

Earl Faircloth, Atty. Gen., Tallahassee, Fla., Charles Musgrove, Asst. Atty. Gen., West Palm Beach, Fla., for respondent-appellee.

Before BELL, AINSWORTH and GODBOLD, Circuit Judges.

PER CURIAM:

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1

This appeal is from the district court's denial of the appellant's petition for a writ of habeas corpus. We dismiss the appeal as having been untimely instituted.

2

By order filed April 22, 1970, the district court denied habeas relief; and on May 25, 1970, the appellant's motion for rehearing was similarly denied. The record before this Court discloses that the court below received no notice of appeal or any document which might reasonably be construed as such until the July 29, 1970 receipt of the appellant's motion for a certificate of probable cause, which was granted on August 12, 1970.

3

Since the appellant did not manifest his desire to appeal until sixty-four days after the denial of his motion for rehearing, four days beyond the maximum extended time period provided in Rule 4(a), F.R.A.P., the district court lacked jurisdiction to issue a certificate of probable cause. Thus this Court has no jurisdiction over the appeal. Lawrence v. Wainwright, 5th Cir. 1969, 419 F.2d 1326, cert. denied 1970, 397 U.S. 1029, 90 S.Ct. 1281, 25 L.Ed.2d 542; Allen v. Wainwright, 5th Cir. 1967, 384 F.2d 745.

4

Appeal dismissed.