259 F2d 41 Nethery v. O Culver

259 F.2d 41

Horace Greely NETHERY, Appellant,
Richard O. CULVER, Custodian, Florida State Prison, Appellee.

No. 17317.

United States Court of Appeals Fifth Circuit.

September 18, 1958.

Richard W. Ervin, Atty. Gen. of Fla., Reeves Bowen, Asst. Atty. Gen. of Fla., for appellee.

Before RIVES, TUTTLE and JONES, Circuit Judges.


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The appellant applied to the District Court for the Southern District of Florida for a writ of habeas corpus, asserting the invalidity of his conviction in the state court of Florida. The district court entered an order on April 7, 1958, denying the petition. Notice of appeal was filed on June 2, 1958. The notice of appeal was filed too late. 28 U.S.C.A. § 2107.


The district judge who entered the final order denying the petition also denied an application for a certificate of probable cause. We will regard the notice of appeal as an application to us for for a certificate of probable cause and having considered the same, we reach the same conclusion as did the district judge and the application for the certificate is denied.


Since the appeal was not taken within the prescribed time and since no certificate of probable cause has been issued, the appeal cannot be maintained and is therefore Dismissed.