469 F2d 1314 Weaver v. State of Texas

469 F.2d 1314

Don H. WEAVER, Petitioner-Appellant,
v.
STATE OF TEXAS et al., Respondents-Appellees.

No. 72-2208.

United States Court of Appeals,
Fifth Circuit.

Nov. 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.

Before BELL, AINSWORTH and DYER, Circuit Judges.

ON PETITION FOR REHEARING

PER CURIAM:

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1

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.

2

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].