688 F2d 407 Henry v. W J Estelle

688 F.2d 407

McKinney Joe HENRY, Petitioner-Appellant,
W. J. ESTELLE, Director, Texas Department of Corrections,

No. 81-1451

Summary Calendar.

United States Court of Appeals,
Fifth Circuit.

Oct. 7, 1982.

McKinney Joe Henry, pro se.

Joe Foy, Jr., Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

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

Before RUBIN, JOHNSON and GARWOOD, Circuit Judges.

GARWOOD, Circuit Judge:

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Petitioner Henry appeals from the district court's denial of his petition for habeas corpus. The district court entered judgment on July 9, 1981. Petitioner's notice of appeal and request for certificate of probable cause were filed on August 14, 1981, which was outside the 30-day time limitation of Fed.R.App.P. 4(a)(1). Petitioner filed no motion to excuse the delay under Fed.R.App.P. 4(a)(5). Therefore, this Court is without jurisdiction to hear the appeal. Reynolds v. Hunt Oil Co., 643 F.2d 1042 (5th Cir. 1981). The lower court's August 26, 1981 grant of the certificate of probable cause is of no import. Neither the request for certificate of probable cause nor the order granting it in any way alludes to the fact that the notice of appeal was untimely or to any reason it was filed subsequent to its due date. The request for certificate of probable cause does not request any extension of time for filing notice of appeal, and indeed does not mention anything at all about notice of appeal. The printed form order granting the certificate of probable cause does not purport to extend the time for notice of appeal or to find that there was excusable neglect or good cause for the failure to sooner file the notice of appeal. Ryals v. Estelle, 661 F.2d 904 (5th Cir. 1981). See also Briggs v. Lucas, 678 F.2d 612 (5th Cir. 1982). Accordingly, we dismiss the attempted appeal.