685 F2d 327 Johnson v. R Pulley

685 F.2d 327

Ronnie Gene JOHNSON, Petitioner-Appellant,
v.
R. PULLEY, Superintendent, Respondent-Appellee.

No. 81-4352.

United States Court of Appeals,
Ninth Circuit.

Argued and Submitted Aug. 9, 1982.
Decided Aug. 25, 1982.

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1

Ronnie Gene Johnson, in pro. per.

2

No appearance for respondent-appellee.

3

Appeal from the United States District Court for the Northern District of California.

4

Before CHAMBERS and WALLACE, Circuit Judges, and JAMESON,* District Judge.

ORDER

5

Johnson appeals the dismissal of his petition for habeas corpus. He was convicted in the courts of California and was incarcerated when he filed his petition, but is now at liberty on parole. He was given notice of the hearing and requested that his appeal be submitted on the briefs. He argues that his sentence for bank robbery was enhanced improperly by the trial judge giving consideration to his use of a firearm in the commission of the offense, despite the provisions of California Penal Code § 1170(b). It is his argument that this enhancement amounted to a violation of his due process rights under the United States Constitution.

6

Appellant's notice of appeal was not timely filed under the provisions of Rule 4(a)(1), F.R.A.P., and no motion for extension of time was sought from the district court within the period provided by Rule 4(a)(5), F.R.A.P. We dismiss the appeal for lack of appellate jurisdiction. Pettibone v. Cupp, 666 F.2d 333 (9th Cir. 1981).

*

The Honorable William J. Jameson, United States District Judge for the District of Montana, sitting by designation