*1 UNITED STATES America ex rel. NOWAKOWSKI, Edward John Appellant, BIGGS, Before KALODNER and FREEDMAN, Judges. Circuit MARONEY, Superintendent, James F.
State Correctional Institution. OPINION OF THE COURT
No. 17077. PER CURIAM: Appeals United States Court of Pursuant mandate of the Su- Third Circuit. preme Court of the United States Dec. lant’s for leave to and to proceed granted in forma will be proceed and the Clerk will be directed to forthwith to docket the file the record out of time. believe that in the circum
We
appellant’s petition
stances of this case
appointment
of counsel should be
appointment
will be
made in the
pursuant
which
be entered
order
will
opinion.
to this
petition appellant
In his
sought
right
to file handwritten
granted,
request
briefs. This
will be
may prefer
file
his counsel
since
typewritten briefs,
do
will
leave to
so
given.
also be
*2
petition for
days
of his
argument
after the denial
the
on
addition to the
writ,
required
pre-
as
the habeas
appeal counsel should
of the-
merits
respective
Title
U.S.C.A.
Section
court
in their
sent
arguments
the
views on
and
their
briefs
regrettably
rea-
the
did
state
We
may
jurisdictional question
exist
which
pe-
appellant’s
of
for our denial
the
sons
ap-
regard
the
the
of
to
timeliness
pau-
with
appeal in
tition for leave to
forma
granting
plication
certifi-
and
of the
for
July
1965.1
peris,
in
of
etc.
our Order
the time of
and
of
cate
ap-
4, 1965,
denied the
we
On October
filing
appeal.
of
of the notice
pellant’s petition
of
reconsideration
expedited
to
the case
be
We will order
July 27, 1965.
our Order of
filed
that
the briefs are
the
so
when
Supreme
United
of the
The
Court
give
appeal priority of
will
the
Clerk
granted
Per
and in a
certiorari
States
listing
panel
a
of the Court.
before
10, 1967,
April
Opinion
va-
on
Curiam
appropriate
An
order will be entered.
for the reason that
cated our Order
[appel-
petitioner
in
the
“erred
Judge
KALODNER,
(dissent-
Circuit
right
Dis-
the
lant]
ing).
Judge
certificate
a 2253
trict
had issued §
appel-
The
Court denied the
the
District
and remanded
of
cause”
petition
a
of
for issuance of writ
proceedings
lant’s
consistent
“for further
case
April
28, 1965. On
opinion.
habeas
on
noted
It must be
with” its
days
May
later —the
Supreme
1965'—thirteen
parenthetically
Court’s
that the
appellant
in the
a
filed
District Court
advert therein
Per Curiam did not
reargument
rehearing,
and
“Petition for
chronology
proceedings
the
in the Dis-
of
petition
That
reconsideration”.
Court,
here
trict
earlier
stated.
May
on
denied
the District Court
grant
remand,
ap-
would,
the
I
on this
14, 1965,
filed in
1965.
he
the
On June
proceed in
pellant’s petition for
leave
on
a notice of
and
District Court
pauperis,
and
his
docket
forma
the
made
for a cer-
same
reasons:
it for these
dismiss
tificate of
cause. The District
petition
of
appellant’s
for a writ
The
on
Court
the certificate
June
having
the
been denied
habeas
1965.
28th,
April
the
District Court on
July 19,
appellant
filed in
On
the
required by
file
2107 to
lant
Section
petition
leave
days
there-
notice of
within
his
pauperis
file a hand
and to
forma
prob-
after,
of
a certificate
and to obtain
pe
prayed in
written
that
brief. He
from either the District
able
appointment
tition for
of counsel. We
the
within
or a
of this Court
July
petition
denied
on
1965 for
the
appellant
30-day period. The
stated
jurisdiction to
the reason that we lacked
appeal in the
of
did not
his notice
file
ap
the
the
inasmuch as
entertain
did he
14th nor
until June
District Court
pellant
comply
with
re
failed
probable cause
obtain a
quirement
of
Title 28 U.S.
Section
days re-
15th2 —47 and
until June
C.A. that notice of
be filed
spectively,
of his habeas
after
denial
days
within 30
after
District Court
April
corpus petition
28th.
on
petition for writ of habeas
denial of his
appellant on
corpus,
and for
further
reason that
is true that
While it
petition
May
for reconsid-
of
cause had
filed
11th
for,
applied
granted,
denial
the District Court’s
and
within
eration
hereby
petition
July 27,
is de-
it
1.
as
Our Order of
1965 reads
be
appel
“Upon
nied.”
follows:
consideration of
proceed in
lant’s
for leave
apply
appellant
the Dis-
did not
forma
and to file handwritten
for a certificate
trict Court
briefs;
appointment
and for
counsel
June 14th —47
cause until
corpus petition.
case;
his habeas
in the above-entitled
It is Obdebed
denial of
corpus petition April 28th,
provides
“Upon
his habeas
on
which
motion of a
filing
peti- party
reconsideration
made not later than 10
(denied May
judgment
14th)
may
tion
on
did not toll
the court
amend
running
findings
statutory 30-day
findings
its
make additional
filing
may
a notice
amend the
accord-
peal
ingly”,
59(b),
provides
issuance of a certificate of
and Rule
which
*3
probable
specific pro-
cause under the
that “A motion for a new trial shall be
52(b)
days
of both
and Rule 59
visions
Rule
served not later than
the
10
after
(b), subsequently detailed,
sup-
entry
judgment”.
(Emphasis
which re-
the
of
spectively require
plied).3
that
motion for
judgment
amendment of
or a
trial
new
81(a)
pro-
(2),
Rule
further
F.R.C.P.
days
must be made
later than
“not
10
requirements
vides that “The
of Title
entry
judgment”.
after
of
28, U.S.C., 2253, relating to certifica-
§
probable
appeals
tion of
in
cause
certain
2107,
pro-
Section
Title 28 U.S.C.A.
corpus
in habeas
remain in force”.
cases
vides,
part,
appeal
in relevant
that “no
bring any judgment,
shall
may
order or de-
To what
be added
has
said
action,
proceeding
81(a) (2)
cree in an
suit or
of a
that
and Rule
Section 2253
are
appeals
Court,
11(3)
civil nature before a court of
embraced in Rule
of this
filed,
appeal
“Appeals,
review
notice of
unless
is
How Taken”.
thirty days
entry
within
after
the
of
Court,
This
in
ex rel.
United States
judgment,
such
order or decree.”
Carey Keeper
County
Montgomery
of
cert,
2253,
U.S.C.A., provides, Prison, Cir.,
(1953),
Section
late
elapsed since the of the District
Court’s order for a though of habeas no-
writ even had filed within the tice been
30-day doing period. so the Court (p. 457): said judges
“The one * * * for a certifi- this probable cause, being
cate of [made] thirty period, too late. This is
made power Court without grant application, if even thought
it were otherwise that there
peal”. *5 America,
UNITED STATES Appellee, HILDRETH, Appellant.
Blair Nivin
No. 11349. Appeals
United States Court of
Fourth Circuit.
Argued Nov. 1967.
Decided Dec. Blythe, Charlotte, N.
Robert B. C. (Court-appointed counsel), appellant. Medford, appellee. Wm. U. Atty., S.