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 not expressly state that the “amended petition” had been denied, he wrote to the court to inquire as to this. He further alleges that he received a reply dated October 16, 1959, from the clerk of the district court, advising that the order of September 28, 1959, “denied all pending petitions, motions and other requests.”

This letter, Poe argues in effect, was presumably issued with the authority and on direction of the judge and therefore operated as an enlargement or perfection of the order of September 28, 1959.

Poe further argues that his application for a certificate of probable cause should be regarded as a notice of appeal. Since that application was filed on November 2, 1959, it was filed within thirty days of the date of the clerk’s letter of October 16, 1959.

By this process of reasoning Poe asks us to hold that his appeal was timely. He, of course, is referring to an appeal from an order presumably denying his so-called “amended petition” which, he tells us, was intended to nullify his petition of June 4, 1958. As stated above, there is no amended petition on file, and, save for the effect to be given to the alleged clerk’s letter of October 16, 1959, the petition of June 4, 1959, although intended to be nullified by Poe, is still pending in the district court.

This court is extremely liberal in accepting as sufficient for the purposes of a notice of appeal informally drawn and improperly labeled documents. See Yanow v. Weyerhaeuser Steamship Co., 9 Cir., 274 F.2d 274, 282 . Hence the application for a certificate of probable cause filed on November 2, 1959, may be regarded as sufficient for that purpose.

But even this document is not timely unless the date of the order is determined to be not September 28,1959, when it was filed, but October 16, 1959, when the clerk wrote a letter, not in the record before us, explaining to Poe the scope of the order. And if timely on this basis the appeal would still be to no avail unless we also accepted the clerk’s letter as a modification of the judgment. Only *252 in this way could it be established contrary to our previous ruling that the order of September 28,1959, denied the petition of June 4, 1958. Unless there was such a denial there would be nothing to review, and, ironically, the denial of the petition of June 4, 1958, is not what Poe wants to review anyway.

The alternative to giving the clerk’s letter this unprecedented effect is, as we have previously ruled, to leave pending before the district court Poe’s petition of June 4, 1958. Thus dismissal of this appeal operates only to refer Poe back to the district court. There Poe may file his “amended petition” and proceed on the pleadings on which he intended to place reliance.

This alternative course being available, and without deciding whether a letter of a court clerk could ever be given the effect of modifying a court order and extending the time for filing an appeal, we decline to give the clerk’s letter in this case such effect.

The petition for rehearing is denied