Stringer v. Franklin , 172 F. App'x 236 ( 2006 )


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  •                                                                          F I L E D
    United States Court of Appeals
    Tenth Circuit
    March 24, 2006
    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    Clerk of Court
    TENTH CIRCUIT
    OLIVER T. STRINGER,
    Petitioner-Appellant,                  No. 05-6238
    v.                                           (W.D. of Okla.)
    ERIC FRANKLIN, Warden, James                     (D.C. No. CV-03-1337-C)
    Crabtree Correctional Center,
    Respondent-Appellee.
    ORDER DENYING CERTIFICATE OF APPEALABILITY                    *
    Before TACHA , Chief Judge, HARTZ , and TYMKOVICH , Circuit Judges.              **
    Appellant Oliver Stringer, a pro se prisoner, seeks a certificate of
    appealability (COA) to challenge the denial of his motion to reopen the time to
    file a notice of appeal. We DENY his request for COA and DISMISS the appeal.
    *
    This order is not binding precedent, except under the doctrines of law of
    the case, res judicata, and collateral estoppel. The court generally disfavors the
    citation of orders; nevertheless, an order may be cited under the terms and
    conditions of 10th Cir. R. 36.3.
    **
    After examining the briefs and the appellate record, this three-judge
    panel has determined unanimously that oral argument would not be of material
    assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
    Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
    BACKGROUND
    Stringer sought a writ of habeas corpus in the Western District of
    Oklahoma, pursuant to 
    28 U.S.C. § 2254
    . The district court denied that petition
    on the merits on July 27, 2004, but Stringer did not appeal the denial to this court
    until April 11, 2005. At that time, we dismissed his appeal as untimely.
    Stringer subsequently filed a motion with the district court to reopen the
    time to file an appeal, pursuant to Rule 4(a)(6) of the Federal Rules of Appellate
    Procedure.   1
    The district court denied the motion on the grounds that Stringer’s
    motion did not meet the time requirements under Rule 4(a)(6)(A). He now
    appeals that decision to this court and seeks a COA.
    ANALYSIS
    On appeal Stringer argues that the district court erred in denying the motion
    1
    Rule 4(a)(6) states:
    Reopening the Time to File an Appeal. The district court may reopen
    the time to file an appeal for a period of 14 days after the date when its
    order to reopen is entered, but only if all the following conditions are
    satisfied: (A) the court finds that the moving party did not receive
    notice under Federal Rule of Civil Procedure 77(d) of the entry of the
    judgment or order sought to be appealed within 21 days after entry; (B)
    the motion is filed within 180 days after the judgment or order is
    entered or within 7 days after the moving party receives notice under
    Federal Rule of Civil Procedure 77(d) of the entry, whichever is earlier;
    and (C) the court finds that no party would be prejudiced.
    -2-
    under Rule 4(a)(6) and asks for a COA to bring this appeal.    2
    We will issue a
    COA if an applicant “has made a substantial showing of the denial of a
    constitutional right.” 
    28 U.S.C. § 2253
    (c)(2). This means that he must
    demonstrate “that reasonable jurists could debate whether (or, for that matter,
    agree that) the petition should have been resolved in a different manner or that the
    issues presented were ‘adequate to deserve encouragement to proceed further.’”
    Slack v. McDaniel , 
    529 U.S. 473
    , 484 (2000).
    Here, reasonable jurists could not debate whether his Rule 4(a)(6) motion
    was appropriate. Rule 4(a)(6) permits the district court to “reopen the time to file
    an appeal” if three conditions are satisfied, one of which is that “the motion is
    filed within 180 days after the judgment or order is entered or within 7 days after
    the moving party receives notice . . . of the entry,   whichever is earlier .” Fed. R.
    App. P. 4(a)(6)(B) (emphasis added). Stringer claims he did not receive notice of
    the judgment for almost ten months after it was entered, essentially asking the
    court to equitably toll the 180-day limitation. However, it is clearly settled that
    2
    In his motion to proceed without payment of costs, Stringer also claims
    that he is raising the issue of “[w]hether Federal Rule of Appellate Procedure
    4(a)(6) overrides Federal Rule of Appellate Procedure 60(b).” As there is no
    Appellate Rule 60(b), we assume he meant Rule 60(b) of the Federal Rules of
    Civil Procedure. He does not raise this issue in his opening brief, so it is not
    necessary to reach the merits of this claim, but we note that we already resolved
    this issue in Clark v. Lavallie, 
    204 F.3d 1038
     (10th Cir. 2000) (holding that Civil
    Rule 60(b) relief was not available to pro se plaintiffs who did not comply with
    Appellate Rule 4(a)(6)).
    -3-
    “nothing within Rule 4(a)(6) indicates it is permissive or that its limitations may
    be waived for equitable reasons. The 180-day limitation . . . is specific and
    unequivocal.”   Clark v. Lavallie , 
    204 F.3d 1038
    , 1040 (10th Cir. 2000).
    Even if we were to consider equitable tolling, the motion would have been
    denied for failure to file the motion within seven days of receiving notice of the
    judgment. The district court found that “more than seven days ha[d] passed since
    Petitioner received notice of the entry of judgment.” Dist. Ct. Order at 2. And
    Stringer does not challenge this finding on appeal. Thus, it would have been
    improper for the district court to grant Stringer’s motion.
    CONCLUSION
    Accordingly, we DENY Stringer’s application for a COA and DISMISS his
    appeal. His motion to proceed in forma pauperis is DENIED.
    Entered for the Court
    Timothy M. Tymkovich
    Circuit Judge
    -4-
    

Document Info

Docket Number: 05-6238

Citation Numbers: 172 F. App'x 236

Judges: Hartz, Tacha, Tymkovich

Filed Date: 3/24/2006

Precedential Status: Non-Precedential

Modified Date: 8/3/2023