Dupree Poe v. Clarence T. Gladden, Warden of the Oregon State Pententiary, Salem, Oregon

287 F.2d 249 Dupree POE, Appellant, v. Clarence T. GLADDEN, Warden of the Oregon State Pententiary, Salem, Oregon, Appellee. No. 16830. United States Court of Appeals Ninth Circuit. Jan. 25, 1961, Rehearing Denied March 6, 1961. Quentin L. Kopp, San Francisco, Cal., for appellant. Dupree Poe, in pro.per. Robert Y. Thornton, Atty. Gen., of Oregon, Robert G. Danielson, Asst. Atty. Gen., of Oregon, for appellee. Before POPE and HAMLEY, Circuit Judges, and JAMESON, District Judge. HAMLEY, Circuit Judge. 1 In this habeas corpus proceeding the applicant, Dupree Poe, serving a life term in Oregon State Penitentiary, appeals from an adverse district court order. A certificate of probable cause was granted by a judge of this court, after which the district court granted Poe leave to appeal in forma pauperis. After Poe had filed his opening and reply briefs the chief judge of this court appointed counsel to represent Poe at the oral argument. Respondent filed an answering brief but was not represented at the oral argument. 2 In the briefs and at the hearing in this court the appeal was argued on the merits, no jurisdictional problem being suggested. Our examination of the record, however,…

In this habeas corpus proceeding the applicant, Dupree Poe, serving a life term in Oregon State Penitentiary, appeals from an adverse district court order. A certificate of probable cause was granted by a judge of this court, after which the district court granted Poe leave to appeal in forma pauperis. After Poe had filed his opening and reply briefs the chief judge of this court appointed counsel to represent Poe at the oral argument. Re *250 spondent filed an answering brief but was not represented at the oral argument.

In the briefs and at the hearing in this court the appeal was argued on the merits, no jurisdictional problem being suggested. Our examination of the record, however, made after the case was taken under submission has revealed flaws in the perfecting of the appeal which require us on our own motion to dismiss the appeal on jurisdictional grounds.

Poe’s original application for a writ of habeas corpus was denied by the district court on April 24, 1958. No appeal was taken therefrom. On June 4, 1958, Poe filed another application for a writ of habeas corpus and also a supplemental application. The district court denied the supplemental application by order…

On Petition for Rehearing

In his petition for rehearing appellant takes exception to the statement in the opinion that references in petitioner's motions of January 27, 1959, to his “amended petition” must have been intended as references to the petition or supplemental application of June 4, 1958, or the petition for rehearing of June 18, 1958, or all three. Poe alleges that he meant what he said in referring to an “amended petition,” asserting that on November 25, 1958, he “submitted” for filing in the district court an “Amended Petition for a Writ of Habeas Corpus.”

The transcript of record contains no such amended petition, and the district court civil docket filed as a part of the transcript does not show that such a document was ever filed. Whoever may be to blame for the failure to obtain the filing of the amended petition, the fact remains that it was not filed and the order of September 28, 1959, referred to in our opinion did not deal with it.

In the petition for rehearing Poe also challenges our ruling that the notice of appeal from the order of September 28, 1959, filed on December 4, 1959, was not timely. He alleges that since the order of September 28, 1959, did…