United States v. Jack , 667 F. App'x 689 ( 2016 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
June 28, 2016
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
_________________________________ Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 16-2061
(D.C. No. 1:13-CV-00738-WJ-LAM
NATHAN DON JACK, & No. 1:09-CR-02626-WJ-1)
(D. N. Mex.)
Defendant-Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before L U C E R O , M A T H E S O N , and B A C H A R A C H , Circuit Judges.
_________________________________
This appeal grows out of prior proceedings involving Mr. Nathan
Don Jack’s conviction in federal court for second-degree murder. After
unsuccessfully appealing, Mr. Jack filed a motion to vacate under 28
U.S.C. § 2255. The district court denied relief, and Mr. Jack filed a
motion to alter or amend the judgment under Federal Rule of Civil
*
Oral argument would not materially aid our consideration of this
appeal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). Thus, we
have decided the appeal based on the briefs.
Our order and judgment does not constitute binding precedent
except under the doctrines of law of the case, res judicata, and collateral
estoppel. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
Procedure 59(e). The district court denied this motion, and Mr. Jack
appealed. We concluded that Mr. Jack’s motion under Rule 59(e) had
been filed out of time. United States v. Jack, 630 F. App’x 858 (10th Cir.
2015) (unpublished). Apparently misunderstanding our conclusion as
turning on the date his motion had been postmarked, Mr. Jack moved in
district court to correct the record. The district court denied relief,
concluding that the record did not need to be corrected because our prior
opinion did not turn on the date of the postmark. We agree.
The deadline for filing a Rule 59(e) motion is 28 days after entry of
the judgment. Fed. R. Civ. P. 59(e). Because Mr. Jack was a prisoner, he
could take advantage of the “prisoner mailbox rule.” Under this rule, the
court regards the filing date of a motion as the date that the prisoner gave
his document to prison authorities for filing. Price v. Philpot, 420 F.3d
1158, 1163-64 (10th Cir. 2005). But the rule requires the prisoner to do
certain things. For example, when filing a motion under 28 U.S.C.
§ 2255, the prisoner must use the available system for legal mail, put the
document in the institutional mailing system by the deadline, and file a
declaration or notarized statement setting forth the date of deposit and
stating that first-class postage had been prepaid. Rule 3(d), Rules
Governing Section 2255 Proceedings for the U.S. District Courts.
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The district court concluded that the Rule 59(e) motion had been
filed out of time, and we agreed in the prior appeal. United States v.
Jack, 630 F. App’x 858, 860 (10th Cir. 2015) (unpublished). There, we
explained that Mr. Jack had not satisfied two requirements for using the
prisoner mailbox rule: (1) he did not say that he had sent the motion
through the prison legal-mail system, and (2) his declaration did not state
that first-class postage had been prepaid. Id. at 860-61. As a result, we
held that the Rule 59(e) motion had not tolled the time to appeal the
denial of relief under § 2255. Id. at 861.
Mr. Jack apparently misunderstood our opinion, for he wants to
clarify the record to show the correct date of the postmark on the
envelope containing his Rule 59(e) motion. The district court declined to
clarify the record because the proposed clarification would not have
made any difference. The court was correct because we had not referred
to the postmark date when deciding that the motion was untimely.
Instead, we relied on Mr. Jack’s failure to state that he had used the
prison’s legal-mail system and that first-class postage had been prepaid.
Based on that reasoning, the district court denied Mr. Jack’s request for
clarification of the record on the date of the postmark.
Mr. Jack’s only argument on appeal is that the district court should
have allowed clarification of the record regarding the date of the
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postmark. We reject this argument because we agree with the district
court’s reasoning. Under our prior opinion, Mr. Jack’s Rule 59(e) motion
would have remained untimely regardless of the date of the postmark. As
a result, we affirm.
Finally, we note that Mr. Jack seeks leave to appeal in forma
pauperis. Though Mr. Jack is indigent, he lacks any good faith for this
appeal. As a result, we deny leave to appeal in forma pauperis. See
Rolland v. Primesource Staffing, LLC, 497 F.3d 1077, 1079 (10th Cir.
2007).
Entered for the Court
Robert E. Bacharach
Circuit Judge
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