United States District Court, N.D. Oklahoma
OPINION AND ORDER
E. DOWDELL UNITED SPATES DISTRICT JUDGE
a 28 U.S.C. § 2254 habeas corpus action. By Opinion and
Order filed November 22, 2016 (Doc. 21), the Court denied the
petition and denied a certificate of appealability. The Court
entered judgment (Doc. 22) in favor of Respondent on November
22, 2016. On January 25, 2017, the Clerk of Court received
and docketed Petitioner's “petition to appeal from
Order of the U.S. District Court Northern District of
Oklahoma” (Doc. 23). Petitioner seeks to appeal this
Court's rulings denying his petition for writ of habeas
corpus and denying a certificate of appealability. He also
seeks to file a second petition for writ of habeas corpus. As
discussed below, the Court finds the time for filing a timely
notice of appeal expired before Petitioner filed his
“petition to appeal.” In addition, Petitioner is
not entitled to either an extension of time to file a notice
of appeal or a reopening of the time for an appeal. Also,
Petitioner may not file a second or successive petition in
this Court without first obtaining authorization from the
Tenth Circuit. For all of those reasons, Petitioner's
“petition to appeal” is denied.
Time for filing notice of appeal has expired
to Rule 4(a)(1)(A), Federal Rules of Appellate
Procedure, a party must file a notice of appeal with the
district court clerk within 30 days of the entry of the
judgment or order appealed from. The filing of a timely
notice of appeal is jurisdictional. Alva v. Teen
Help, 469 F.3d 946, 948 (10th Cir. 2006) (stating a
“timely notice of appeal in a civil case is . . . a
jurisdictional prerequisite to our review”).
Petitioner's appeal deadline in this case was December
22, 2016, or thirty (30) days after entry of the Court's
Opinion and Order denying the petition. Petitioner did not
file his “petition to appeal” until January 25,
2017, or thirty-four (34) days beyond the deadline.
Therefore, the “petition to appeal” is untimely
and cannot be considered the functional equivalent of a
notice of appeal. See Smith v. Barry, 502 U.S. 244,
248-49 (1992) (“If a document filed within the time
specified by Rule 4 gives the notice required by Rule 3, it
is effective as a notice of appeal.”).
Petitioner is not entitled to an extension of time to file a
notice of appeal
4(a)(5)(A), Federal Rules of Appellate Procedure,
provides that the district court may extend the time to file
a notice of appeal if:
(i) a party so moves no later than 30 days after the time
prescribed by this Rule 4(a) expires; and
(ii) regardless of whether its motion is filed before or
during the 30 days after the time prescribed by this Rule
4(a) expires, that party shows excusable neglect or good
Fed. R. App. P. 4(a)(5)(A).
case, Petitioner satisfies neither requirement. The Clerk of
Court docketed Petitioner's “petition for
appeal” on January 25, 2017, or more than thirty (30)
days beyond the deadline of December 22, 2016. However, in
his certificate of mailing, Petitioner states that:
I certify that on this 21 day of January 2017 I mailed
postage prepaid a true and correct copy of the above and
foregoing to the Clerk, of the U.S. District Court Northern
District of Oklahoma in case 13-CV-775-JED-TLW at 333 West
Fourth Street, Room # 411, Tulsa, Oklahoma 74103-3819, for
See Doc. 23 at 2. If Petitioner is entitled to
benefit from the prisoner mailbox rule, see Houston v.
Lack, 487 U.S. 266, 276 (1988) (finding that pro se
prisoner's “notice of appeal was filed at the time
petitioner delivered it to the prison authorities for
forwarding to the court clerk”), then the
“petition to appeal” would be considered filed as
of January 21, 2017, the thirtieth day after the deadline for
filing a timely notice of appeal. However, Petitioner's
statement is neither notarized nor sworn under penalty of
perjury and he does not aver that he used his facility's
legal mail system. See Doc. 23 at 2. As a result, he
is not entitled to benefit from the prisoner mailbox rule.
See Price v. Philpot, 420 F.3d 1158, 1166 (10th Cir.
2005) (stating that “an inmate must establish timely
filing under the mailbox rule by either (1) alleging and
proving that he or she made timely use of the prison's
legal mail system if a satisfactory system is available, or
(2) if a legal system is not available, then by timely use of
the prison's regular mail system in combination with a
notarized statement or a declaration under penalty of perjury
of the date on which the documents were given to prison
authorities and attesting that postage was prepaid”).
Therefore, Petitioner's “petition to appeal”
was filed on January 25, 2017, when it was received by the
Clerk of Court. Because he did not file his “petition
to appeal” within thirty (30) days of the deadline for
filing a timely notice of appeal, he is not entitled to an
extension of time to file a notice of appeal.
Petitioner had filed his “petition to appeal”
within thirty (30) days of the deadline for filing a timely
notice of appeal, the Court finds Petitioner has not shown
“excusable neglect” or “good cause”
for his failure to file a timely notice of appeal.
“[I]inadvertence, ignorance of the rules, or mistakes
construing the rules do not usually constitute
‘excusable' neglect.” Pioneer Inv. Servs.
Co. v. Brunswick Assoc., Ltd., 507 U.S. 380, 392 (1993).
Furthermore, the time for taking an appeal should not be
extended in the “absence of circumstances that are
unique and extraordinary.” Bishop v.
Corsentino, 371 F.3d 1203, 1207 (10th Cir. 2004)
(quoting Gooch v. Skelly Oil Co., 493 F.2d 366, 370
(10th Cir. 1974)).
support of his “petition to appeal, ” Petitioner
points out that he is “untrained and schooled in law
and is a layman at the law.” See Doc. 23 at 1.
He further alleges that “[d]ue to limited time in the
prison law library of normally only 1 and one half hours and
the holidays Appellant could not gain access to draft this
appeal before date listed below.” See Id. The
Court finds those excuses are neither unique nor
extraordinary and that Petitioner fails to demonstrate either
“excusable neglect” or “good cause.”
The Tenth Circuit Court of Appeals has determined that, in
the context of requiring additional time to cure
deficiencies, a prisoner's inability to access his
facility's law library did not constitute good cause or
excusable neglect. See Wallin v. Arapahoe Cty. Det.
Facility, 244 F. App'x 214, 218 (10th Cir. 2007)
(unpublished). Furthermore, extended access to a law
library is not required to prepare a notice of appeal. There
are only three (3) simple requirements for a notice of
appeal, namely specification of the parties, the order
appealed, and the name of the court to which the appeal is
taken. See Fed. R. App. P. 3(c). Thus, even if
Petitioner were able to satisfy the time ...