Coots v. Allbaugh ( 2016 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 11, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
DARRELL LEE COOTS,
Petitioner - Appellant,
v. No. 16-6058
(D.C. No. 5:13-CV-00835-M)
JOE M. ALLBAUGH, Interim Director of (W.D. Okla.)
the Oklahoma Department of Corrections,
Respondent - Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
Darrell Lee Coots, a state prisoner proceeding pro se,1 seeks to appeal from the
denial of his motions to extend or reopen the time to appeal the denial of his application
for a writ of habeas corpus under 28 U.S.C. § 2254. As we explain below, Mr. Coots
must obtain a certificate of appealability (“COA”) to pursue this appeal. Exercising
* This order is not binding precedent, except under the doctrines of law of the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.
1
Because Mr. Coots proceeds pro se, we construe his filings liberally. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); see also United States v.
Pinson, 584 F.3d 972, 975 (10th Cir. 2009) (“[W]e must construe [a pro se litigant’s]
arguments liberally; this rule of liberal construction stops, however, at the point at which
we begin to serve as his advocate.”).
jurisdiction under 28 U.S.C. § 1291, we deny a COA. We also deny his request to
proceed in forma pauperis.
I. BACKGROUND
Mr. Coots filed an application for writ of habeas corpus under 28 U.S.C. § 2254 in
the United States District Court for the Western District of Oklahoma. The district court
denied Mr. Coots’s application on the merits and entered final judgment on January 21,
2014 . On June 4, 2015, Mr. Coots filed a “Motion for Clarification/Extension to
Appeal,” arguing, in relevant part, that he never received notice of the court’s order
denying his habeas application. See Fed. R. App. P. 4(a)(5) (permitting a district court to
extend the time to file a civil appeal).
On August 21, 2015, while this motion was pending, Mr. Coots filed a notice of
appeal as to the denial of his habeas application. We dismissed his appeal as untimely.
We explained:
The timely filing of a notice of appeal is both mandatory and jurisdictional.
Bowles v. Russell, 551 U.S. 205, 214 (2007). In a proceeding under 28
U.S.C. § 2254, a notice of appeal “must be filed with the district clerk
within 30 days after entry of the judgment or order appealed from.” Fed. R.
App. P. 4(a)(1)(A); see also Manco v. Werholtz, 528 F.3d 760, 761 (10th
Cir. 2008) (applying Fed. R. App. P. 4(a) time limit to § 2254 proceeding).
The district court is authorized to grant relief from this deadline by
extending or reopening the time to appeal if certain conditions are satisfied.
See Fed. R. App. P. 4(a)(5) and 4(a)(6). A motion for extension of time
under Fed. R. App. P. 4(a)(5) must be filed no later than 30 days after the
time to appeal expires, in this case March 24, 2014. Fed. R. App. P.
4(a)(5)(A)(i). A motion to reopen the time to appeal under Fed. R. App. P.
4(a)(6), which is based on lack of notice of entry of the judgment, must be
filed within (1) 180 days after entry of the judgment (here, July 21, 2014)
or (2) 14 days after the moving party receives notice of entry of the
judgment (here, June 11, 2015, assuming Coots received notice [of] the
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district court’s May 28, 2015 order), “whichever is earlier.” Fed. R. App. P.
4(a)(6)(B) (emphasis added). Although Coots filed his motion for
extension of time to appeal on June 4, 2015, within 14 days of receiving
notice, he did not file his motion by the earlier deadline, July 21, 2014.
Because Coots’s motion for extension of time was not timely under either
Fed. R. App. P. 4(a)(5) or Fed. R. App. P. 4(a)(6), the district court lacks
authority to grant any relief from the filing deadline. Coots’s August 21,
2015 notice of appeal is clearly untimely and, therefore, this court lacks
jurisdiction to consider this appeal.
Coots v. H. A. Rios, Jr., No. 15-6157, at *2-3 (10th Cir. August 28, 2015).
On September 4, 2015, Mr. Coots filed a “Supplemental/Motion for an
Extension/Reopen the Time to Appeal” in district court, asserting he did not receive
notice of the court’s order denying his habeas application until May 28, 2015. See Fed.
R. App. P. 4(a)(6) (permitting a district court to reopen the time to file a civil appeal if,
among other things, the movant did not receive notice of the entry of judgment within
twenty-one days of entry).
On October 21, 2015, Mr. Coots filed a “Motion to Add Supplemental
Documentation.” He attached a letter from his attorney, stating the attorney was unable
to find documentation indicating he sent Mr. Coots a copy of the court’s order denying
him habeas relief.
The district court denied the June 4, September 4, and October 21 (all 2015)
motions, concluding they were untimely.
II. DISCUSSION
To appeal the denial of his Rule 4(a)(5) and Rule (4)(a)(6) motions in his § 2254
proceeding, Mr. Coots must obtain a COA. See 28 U.S.C. § 2253(c)(1)(A) (“Unless a
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circuit justice or judge issues a certificate of appealability, an appeal may not be taken to
the court of appeals from . . . the final order in a habeas corpus proceeding in which the
detention complained of arises out of process issued by a State court . . . . ”); Dulworth v.
Jones, 496 F.3d 1133, 1135-36 (10th Cir. 2007) (noting other circuits require a COA to
appeal the denial of a Rule 4(a)(6) motion because such denials are final orders); United
States v. Rinaldi, 447 F.3d 192, 195 (3d Cir. 2006) (holding the denial of a Rule 4(a)(6)
motion is a final order, and a COA is therefore necessary for appellate review of that
denial); Eltayib v. United States, 294 F.3d 397, 398-99 (2d Cir. 2002) (same).
To obtain a COA in a § 2254 case involving the denial of a Rule 4(a)(5) motion
and Rule 4(a)(6) motion, Mr. Coots must at least show “jurists of reason would find it
debatable whether the district court was correct in its procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000); see also Rinaldi, 447 F.3d at 195; Eltayib, 294 F.3d
at 400.
Whether the district court correctly denied Mr. Coots’s motions is beyond debate.
As we explained in our previous order, Mr. Coots was required to file a Rule 4(a)(5)
motion within 30 days of entry of judgment, which he did not. He was required to file a
Rule 4(a)(6) motion by July 21, 2014, which he did not. No reasonable jurist would
argue the district court erred in denying Mr. Coots’s motions. We accordingly decline to
issue a COA.
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III. CONCLUSION
For the foregoing reasons, we deny a COA and dismiss this matter. We also deny
Mr. Coots’s request to proceed in forma pauperis.
ENTERED FOR THE COURT
Scott M. Matheson, Jr.
Circuit Judge
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