Aldridge, Jr. v. United States Attorney General , 412 F. App'x 130 ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
February 10, 2011
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
JAMES E. ALDRIDGE, JR.,
Petitioner-Appellant,
v. No. 10-1305
(D.C. No. 1:10-CV-00187-ZLW)
UNITED STATES ATTORNEY (D. Colo.)
GENERAL; AGENT WARDEN RENE
GARCIA,
Respondents-Appellees.
ORDER AND JUDGMENT*
Before LUCERO, EBEL, and GORSUCH, Circuit Judges.
James Aldridge, a federal prisoner proceeding pro se,1 seeks to appeal a district
court order dismissing his 28 U.S.C. § 2241 petition, and an order denying
reconsideration. Because Aldridge did not file a timely notice of appeal, we lack
* The case is unanimously ordered submitted without oral argument pursuant to
Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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 and judgments;
nevertheless, an order and judgment may be cited under the terms and conditions of 10th
Cir. R. 32.1.
1
Because Aldridge proceeds pro se, we liberally construe his pleadings. See Hall
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
jurisdiction to review the first order. Exercising jurisdiction under § 1291, we affirm the
denial of Aldridge’s motion for reconsideration.
I
Aldridge was convicted in the United States District Court for the Western District
of Missouri on five counts of aiding and abetting the filing of false tax returns in violation
of 26 U.S.C. § 7206(1) and 18 U.S.C. § 2. See United States v. Aldridge, 561 F.3d 759,
762 (8th Cir. 2009). In January 2010, while incarcerated in the Federal Correctional
Institute in Englewood, Colorado, Aldridge filed a 28 U.S.C. § 2241 petition in the
United States District Court for the District of Colorado. Aldridge’s petition alleged that
the IRS failed to follow proper administrative procedures before filing criminal charges
against him, and did the same with respect to a subsequent civil action. He requested
immediate release and dismissal of both the criminal charges and civil proceedings.
After issuing an order to show cause and allowing Aldridge to respond, the district
court dismissed the petition. It held that Aldridge’s attack on his criminal conviction
should have been brought under 28 U.S.C. § 2255 in the district of conviction, and his
challenge to civil proceedings was not cognizable in habeas. The court entered judgment
on May 4, 2010. Aldridge filed a motion for reconsideration which was executed on June
11, and reached the court several days later. The court denied that motion on June 22.
Aldridge’s notice of appeal was executed on July 12 and mailed the following day.
II
Before addressing the merits of Aldridge’s appeal, we must consider our
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jurisdiction to do so. See United States v. Gonzales, 531 F.3d 1198, 1200 (10th Cir.
2008). Aldridge had sixty days from entry of judgment to file a notice of appeal. Fed. R.
App. P. 4(a)(1)(B). That deadline is strict and jurisdictional. See Bowles v. Russell, 551
U.S. 205, 214 (2007). Aldridge’s time to file a notice of appeal therefore expired on July
6, 2010, but he did not sign and mail his notice of appeal until July 12 and 13,
respectively. See Price v. Philpot, 420 F.3d 1158, 1165 (10th Cir. 2005) (under prison
mailbox rule, documents are deemed filed when inmate gives them to prison officials for
mailing).
Aldridge did file a motion for reconsideration within the time to appeal. But
because that motion was provided to prison officials for mailing more than twenty-eight
days after entry of judgment, it is construed as a Fed. R. Civ. P. 60(b) motion for relief
from judgment rather than a Fed. R. Civ. P. 59(e) motion to alter or amend judgment.
See Ysais v. Richardson, 603 F.3d 1175, 1178 nn.2, 3 (10th Cir. 2010). Although a Rule
59(e) motion tolls the time to file a notice of appeal, a Rule 60(b) motion filed more than
twenty-eight days after judgment does not. See Fed. R. App. P. 4(a)(4)(A)(iv), (vi).
Accordingly, we lack jurisdiction to consider Aldridge’s appeal of the district court order
dismissing his habeas petition.
Nevertheless, the denial of a Rule 60(b) motion is a separately appealable order.
See Stubblefield v. Windsor Capital Grp., 74 F.3d 990, 993-94 (10th Cir. 1996). Because
Aldridge filed a notice of appeal within sixty days of the denial of his Rule 60(b) motion,
we possess jurisdiction to review only that order. See Fed. R. App. P. 4(a)(1)(A).
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III
We review the denial of a Rule 60(b) motion for abuse of discretion. White v.
Am. Airlines, Inc., 915 F.2d 1414, 1425 (10th Cir. 1990). In reviewing the denial of a
Rule 60(b) motion, we “review only the district court’s order of denial and not the
underlying judgment itself.” Stubblefield, 74 F.3d at 994 (quotation omitted). “Relief
under Rule 60(b) is extraordinary and may only be granted in exceptional
circumstances.” Bud Brooks Trucking, Inc. v. Bill Hodges Trucking Co., 909 F.2d 1437,
1440 (10th Cir. 1990).
Aldridge does not indicate which of the six Rule 60(b) subsections he believes are
relevant to his appeal. The bulk of his filings in this court addresses the propriety of the
district court’s order dismissing his § 2241 petition—claims over which we lack
jurisdiction. See Part II, supra. Construing his filings liberally, see Hall, 935 F.2d at
1110, we distill two Rule 60(b) arguments from Aldridge’s brief.
First, Aldridge argues that he is entitled to relief under Rule 60(b)(1) because the
district court mistakenly interpreted his petition as challenging ongoing civil proceedings.
We agree with the district court’s assessment. Aldridge plainly requested dismissal of all
“ancillary Civil Actions” in his petition. Second, Aldridge argues that the judge
presiding over his case should have been recused, which arguably implicates Rule
60(b)(6)’s “any other reason that justifies relief” prong. But Aldridge fails to identify any
specific bases to conclude that the presiding judge was biased or prejudiced against him
other than the court’s order. “[A]dverse rulings cannot in themselves form the
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appropriate grounds for disqualification.” Green v. Branson, 108 F.3d 1296, 1305 (10th
Cir. 1997) (quotation omitted). We discern no abuse of discretion in the district court’s
denial of Aldridge’s motion to reconsider.
IV
For the foregoing reasons, we DISMISS for lack of jurisdiction Aldridge’s
challenge to the district court’s order dismissing his § 2241 petition, and AFFIRM the
district court’s order denying reconsideration. Because Aldridge has not advanced a
reasoned, non-frivolous argument on appeal, we DENY his motion to proceed in forma
pauperis. See DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991).
Entered for the Court
Carlos F. Lucero
Circuit Judge
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