James Bryant v. Marion J. Elliott, Warden of Atmore State Prison

467 F.2d 1109

James BRYANT, Petitioner-Appellant,
v.
Marion J. ELLIOTT, Warden of Atmore State Prison, Respondent-Appellee.

No. 72-2458 Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

Oct. 4, 1972.

James Bryant, pro se.

William J. Baxley, Atty. Gen., Don Dickert, Asst. Atty. Gen., Montgomery, Ala., for appellee.

Before GEWIN, AINSWORTH and SIMPSON, Circuit Judges.

PER CURIAM.

1

In this appeal from the denial of habeas corpus the preliminary question is whether the appeal was timely, since Rule 4(a) of the Federal Rules of Appellate Procedure requires petitioner to file a notice of appeal with the Clerk of the District Court within thirty days of the entry of the District Court's order. Here the petitioner's notice of appeal was less than five days overdue.

2

Petitioner appealed in forma pauperis, apparently without the assistance of an attorney. While we do not suggest that ignorance alone is an excuse, we are influenced by doubts that he understood Rule 4(a)'s provision relative to the District Court extending the time upon a showing of excusable neglect.

3

Under these circumstances we remand the case to permit petitioner within thirty days to request the District Judge to extend the time for appeal (under Rule 4(a)) on showing excusable neglect. Pending the outcome, jurisdiction will be retained by us. Evans v. Jones, 4 Cir., 1966, 366 F.2d 772; C. Wright, Law of Federal Courts 467 (1970). Cf. Weaver v. Texas, 5 Cir., 1972, 464 F.2d 562.

4

Remanded.

*

Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I