United States v. Hamilton ( 2012 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT July 11, 2012
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
No. 12-3068
v. (D.C. Nos. 5:11-CV-04036-JAR
and 5:02-CR-40157-JAR-3)
CLIVE ANTHONY HAMILTON, (D. Kan.)
Defendant–Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before LUCERO, O’BRIEN, and MATHESON, Circuit Judges.
Clive Hamilton, a federal prisoner appearing pro se, seeks a certificate of
appealability (“COA”) to appeal the district court’s denial of his 28 U.S.C. § 2255 habeas
petition. We deny a COA and dismiss the appeal.
I
Following a jury trial, Hamilton was convicted of conspiracy to distribute
marijuana in violation of 21 U.S.C. § 846 and sentenced to 360 months’ imprisonment.
*
This order is not binding precedent except under the doctrines of law of the case,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.
After his conviction was affirmed on appeal, United States v. Hamilton, 587 F.3d 1199(10th Cir. 2009), Hamilton filed a § 2255 habeas petition. On October 25, 2011, the
district court denied Hamilton’s petition. Hamilton then filed a motion to reconsider
pursuant to Fed. R. Civ. P. 59(e) on November 21, 2011, which the district court denied
on December 8, 2011. On December 19, 2011, Hamilton filed a second motion seeking
reconsideration, which was denied on December 21, 2011. A third motion seeking
reconsideration followed on January 9, 2012 and was denied on January 17, 2012. On
March 16, 2012, Hamilton filed notice that he was appealing the denial of his petition and
all subsequent motions.
II
We will grant a COA “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing,
Hamilton 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) (quotation omitted). We liberally construe
Hamilton’s pro se filings. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).
Under Fed. R. App. P. 4(a)(1)(B), a notice of appeal must be filed within sixty
days of the entry of the judgment if the United States is a party. However, because
Hamilton filed a Rule 59(e) motion, his time to appeal did not start running until the court
denied that motion on December 8, 2011. Fed. R. App. P. 4(a)(4)(A) (“[T]he time to file
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an appeal runs for all parties from the entry of the order disposing of the . . . motion.”).
Hamilton thus had until February 6, 2012 to file his notice of appeal. The second and
third motions seeking reconsideration did not affect this deadline; we have firmly held
that successive post-judgment motions do not toll the time for appealing an underlying
judgment. See Ysais v. Richardson, 603 F.3d 1175, 1178 (10th Cir. 2010) (explaining
that a successive post-judgment motion did “not extend the time for filing a notice of
appeal from the underlying amended final judgment”). Because Hamilton waited until
March 16, 2012 to file his notice of appeal—over one month past the February 6
deadline—his appeal is untimely as to the denial of his § 2255 petition. We thus lack
jurisdiction to review the district court’s denial of Hamilton’s petition. See United States
v. Langham, 77 F.3d 1280, 1280 (10th Cir. 1996).
Although Hamilton’s March 16 notice of appeal is untimely as to the denial of his
petition, it is timely as to the district court’s denial of his second and third post-judgment
motions. The district court denied his second motion on December 21, 2011, but the
filing of the third motion on January 9, 2011 tolled Hamilton’s time to appeal that denial.
See Ysais, 603 F.3d at 1178 (A “second motion for reconsideration tolled Ysais’s time to
appeal . . . from the denial of the first motion for reconsideration”). The third motion was
denied on January 17, giving Hamilton until March 19 to appeal the denial of that motion
and the second motion. Liberally construing his pro se filings, we proceed to review of
the denial of both the second and third motions for reconsideration.
We review the district court’s denial of a Rule 59(e) motion for abuse of
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discretion. Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir. 1997). “Grounds
warranting a motion to reconsider include (1) an intervening change in the controlling
law, (2) new evidence previously unavailable, and (3) the need to correct clear error or
prevent manifest injustice.” Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th
Cir. 2000). Hamilton offers no legal or factual arguments indicating that the district court
erred in denying his motions. Rather, he simply recites the standard for obtaining a COA
without any germane elaboration of his claims. This is insufficient to show that “the
court has misapprehended the facts, a party’s position, or the controlling law.” Id. To the
extent Hamilton’s serial motions arose under Rule 60 rather than Rule 59, his failure to
provide any meaningful challenge to the district court’s denial similarly precludes relief.
See Franke v. ARUP Labs., Inc., 390 F. App’x 822, 827 (10th Cir. 2010) (unpublished)
(rejecting challenge to Rule 60 denial because appellant failed to identify grounds).
III
Because Hamilton has not shown that his claim is debatable on the merits, we
DENY a COA and DISMISS the appeal.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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