Seward v. Christianson , 317 F. App'x 827 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
March 23, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
JERRY LLOYD SEWARD,
Plaintiff-Appellant, No. 08-6047, 08-6081
v. Western District of Oklahoma
GENE CHRISTIANSON, District (D.C. No. 5:07-CV-00447-RJC)
Attorney; LEAH EDWARDS,
Assistant District Attorney; BILL
SMITH, Public Defender,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before LUCERO, MURPHY and McCONNELL, Circuit Judges.
These are two consolidated pro se state prisoner civil rights appeals. Jerry
Seward filed a Federal Rule of Civil Procedure 60(b) motion for relief from
judgment, claiming he had newly discovered evidence which would require the
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
district court to relieve him from its prior judgment and extend the time for
appeal. The district court construed this as a Federal Rule of Appellate Procedure
4(a)(6) motion to reopen the time to appeal. The court dismissed the motion. Mr.
Seward timely appeals this decision, as well as the denial of his motions to
proceed in forma pauperis and to amend his complaint. We review the district
court’s legal conclusions de novo and factual conclusions, if any, for clear error.
United States v. Clark, 84 F.3d 378, 381 (10th Cir. 1996).
First, Mr. Seward claims the district court’s order is invalid because the last
line reads “IT IS SO ORDERED this th [sic] day of January, 2008.” This line
presents two errors. Obviously, the court forgot to fill in the date. In addition,
the month listed is January though the order was issued in February. These
clerical errors can be corrected “at any time” under Fed. R. Crim. P. 36, and do
not affect the validity of an order or judgment. See Flanagan v. United States,
179 F.2d 703 (6th Cir. 1949) (holding that an incorrect date of judgment of
conviction for crime endorsed on judgment can be amended to show correct date
without invalidating judgment).
Second, Mr. Seward claims that, even if the order is valid, the district court
erred in denying his Rule 60(b) motion. According to Mr. Seward, the state
impeded his access to records, and this should have the tolled the time he had to
file an appeal. However, in making this argument, Mr. Seward appears to be
complaining about his first appeal in 2007, which was dismissed as time barred.
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In that appeal, this Court determined that the prison mailbox rule did not apply,
and as a result, Mr. Seward’s notice of appeal was filed more than sixty days late.
See Seward v. Christianson, 07-6268 (10th Cir. Nov. 15, 2007) (unpublished).
This appeal is from a second district court opinion, a different case involving the
same parties and the same facts. The second district court opinion did not address
the mailbox rule and dismissed his motion on procedural grounds, which Mr.
Seward fails to address in his brief.
The district court opinion applied Federal Rule of Appellate Procedure
4(a)(6) in determining whether Mr. Seward’s motion to extend the time to appeal
could be granted. Rule 4(a)(6) permits a court to reopen the time for appeal if
certain requirements are met; however, the district court found the requirements
unfulfilled. For relief to be granted, Rule 4(a)(6)(A) requires that “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.” Here, the district court’s judgment on dismissal was
entered on June 29, 2007. Mr. Seward filed a Motion for Reconsideration on July
6, 2007, showing that he had notice of the judgment within 21 days of its entry.
Thus, the district court denied his motion.
Mr. Seward’s appellate challenges to the decision below are difficult to
follow. He claims his Due Process and Equal Protection rights have been violated
by the district court in this case, but then proceeds to bring up issues that we
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addressed in his first appeal. Though he claims he should have been entitled to an
evidentiary hearing in district court, Mr. Seward makes no mention of Federal
Rule of Appellate Procedure 4, upon which the entire district court opinion in this
case was based. He fails to show any reason why the district court order denying
his motion to extend the time to appeal was in error. Thus, the well-reasoned
district court order should be upheld.
The denial of Mr. Seward’s Fed. R. Civ. P. 60(b) motion is AFFIRMED.
The district court’s denial of Mr. Seward’s motion to proceed in forma pauperis
and his motion to amend his complaint are likewise AFFIRMED.
Entered for the Court,
Michael W. McConnell
Circuit Judge
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