from the United States District Court for the Western
District of Oklahoma (D.C. No. 5:16-CV-00484-R)
D. Barr (Scott F. Llewellyn of Morrison & Foerster,
L.L.P., with him on the brief), Denver, Colorado, for
Plaintiff - Appellant.
Michael K. Velchik, Assistant Solicitor General (Justin P.
Grose, Assistant Attorney General, with him on the brief),
Office of the Attorney General, Litigation Division, Oklahoma
City, Oklahoma, for Defendant - Appellee.
R. Henderson, ACLU of Oklahoma Foundation, Oklahoma City,
Oklahoma, for Amicus Curiae American Civil Liberties Union of
J. Korzen, Director, Wake Forest University School of Law,
Appellate Advocacy Clinic, Winston-Salem, North Carolina, for
Amici Curiae NARSOL & OK Voices.
KELLY, MURPHY, and MORITZ, Circuit Judges.
Ray Carney appeals from the district court's dismissal of
his claims under the Eighth and Fourteenth Amendments.
Carney v. Okla. Dep't of Pub. Safety, No.
5:16-CV-00484-R, 2016 WL 4250473 (W.D. Okla. Aug. 10, 2016).
He also raises an additional First Amendment claim not
considered by the district court. Our jurisdiction arises
under 28 U.S.C. § 1291. We affirm the district
court's dismissal on the Eighth and Fourteenth Amendment
claims; the First Amendment claim has been forfeited.
Carney, a state inmate appearing pro se, was convicted of
sexually abusing a child in 2010. Upon his release in January
2018,  Mr. Carney will be required to register as
an aggravated sex offender. Under Oklahoma law, this means he
will have to acquire a driver's license that indicates he
is a sex offender ("license requirement"). Okla.
Stat. tit. 47, § 6-111(E)(1) (2017). Failing to obtain
such a license results in cancellation, and continued use of
a cancelled license is a misdemeanor. Id. §
August 10, 2016, the district court dismissed Mr.
Carney's claims under the Eighth and Fourteenth
Amendments. Mr. Carney now appeals from that order and makes
an additional claim that the license requirement is
unconstitutional under the First Amendment. Mr. Carney's
notice of appeal was filed on September 15, 2016, six days
after the 30-day deadline had lapsed.
The Timeliness of the Appeal
district court granted the government's motion to dismiss
on August 10, 2016. Mr. Carney's notice of appeal was due
30 days thereafter on September 9. Fed. R. App. P.
4(a)(1)(A). Although the notice of appeal is dated September
9, it was not filed until September 15. On September 16, the
clerk of court issued an order to show cause regarding the
untimeliness of Mr. Carney's notice of appeal. It noted
that the prison mailbox rule could save the untimely notice
but that Mr. Carney had not yet fulfilled its requirements.
Mr. Carney later declared under penalty of perjury that his
notice of appeal was placed (in an envelope marked as
"Legal Mail") in the prison mail drop on September
9 with prepaid postage. We exercise our discretion under ...