Opinion
24-1167
05-13-2024
GREGORY D. COSBY, a/k/a Gregory D. Crosby, Petitioner-Appellant, v. A. CIOLLI, Warden; M. BANUELOS, DHO Officer; J. POTTER, Correctional Officer; K. MANDABON MARTINEZ; D. MCMICHAEL, Respondents-Appellees.
D.C. No. 1:23-CV-01274-GPG (D. Colo.)
Before HARTZ, TYMKOVICH, and EID, Circuit Judges.
ORDER
This matter is before the court on: (1) the jurisdictional show cause order it issued on April 29, 2024, challenging the timeliness of the notice of appeal filed by pro se petitioner-appellant Gregory D. Cosby a/k/a Gregory D. Crosby; and (2) Mr. Cosby's response to that order. Upon consideration of these filings, the district court docket, and the applicable law, the court dismisses the appeal as untimely filed for the reasons set forth below.
"This Court can exercise jurisdiction only if a notice of appeal is timely filed." Allender v. Raytheon Aircraft Co., 439 F.3d 1236, 1239 (10th Cir. 2006); Browder v. Dir., Dep't of Corr. of Ill., 434 U.S. 257, 269 (1978) (holding that federal habeas corpus cases are civil rather than criminal proceedings). In a proceeding under 28 U.S.C. § 2241, the petitioner must file a notice of appeal within 60 days after the district court enters the order or judgment from which the petitioner seeks to appeal. 28 U.S.C. § 2107(a); Fed. R. App. P. 4(a)(1)(A). This court has no authority to make equitable exceptions to these jurisdictional requirements, see Bowles v. Russell, 551 U.S. 205, 216 (2007), and "[p]roceeding pro se does not relieve [Mr. Cosby] of the responsibility to learn about and follow the correct procedures to file a notice of appeal." Cosby v. Astrue, 507 Fed.Appx. 819, 821 (10th Cir. 2013) (unpublished); see also Mayfield v. U.S. Parole Comm'n, 647 F.2d 1053, 1055 (10th Cir. 1981) (dismissing pro se appeal filed three days late).
On February 5, 2024, the district court denied Mr. Cosby's Amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 [ECF No. 35], dismissed the case underlying this appeal [id.], and entered judgment by separate order [ECF No. 36]. Any notice to appeal that judgment was due on or before April 5, 2024. See 28 U.S.C. § 2107(b); Fed. R. App. P. 4(a)(1)(B) (notice of appeal in a civil case in which the United States is a party must be filed "within 60 days after the entry of the judgment or order appealed from").
But, Mr. Cosby did not sign his notice of appeal until April 16, 2024, and did not file it with the district court until April 22, 2024, more than two weeks after it was due. [ECF No. 40]. Mr. Cosby did not file any post-judgment motions that would serve to toll or extend the time he had to file a notice of appeal from the judgment of dismissal, see Fed. R. App. P. 4(a)(4)(A)(vi), nor did he file a motion for extension of time to appeal, see Fed. R. App. P. 4(a)(5) (requiring a motion to extend the time to appeal to be filed "no later than 30 days after" the notice of appeal is otherwise due). Further, the district court found that Mr. Cosby did not make the requisite showing to allow it to reopen the time to appeal. [ECF No. 44 (citing Fed. R. App. P. 4(a)(6)].
In response to this court's jurisdictional show cause order, Mr. Cosby does not argue that he timely filed his notice of appeal within 60 days after the district court entered judgment, but instead argues that: (1) he has still not received the district court's judgment; and (2) his delay in filing a notice of appeal is due to "another mistake and error on the [sic] Judge Gallagher and his clerks," including the district court's "fu up!" in denying his motion to reopen the time to appeal. Neither of these arguments establish the court's jurisdiction.
First, "[Rule 4(a)] is clear . . . that the appeal period is triggered by the date the judgment was entered, not the date a party receives a copy of the judgment." Williams v. United States, 810 Fed.Appx. 698, 700 (10th Cir. 2020) (unpublished). Stated differently, the appeal period begins to run on the date the district court entered judgment. See Fed. R. App. P. 4(a)(1) (stating that the time period for appeal as of right in a civil action begins to run on the date "the judgment or order appealed from" is entered); Fed.R.Civ.P. 58(c) ("[J]udgment is entered at the following times: (1) if a separate document is not required, when the judgment is entered in the civil docket under [Fed. R. Civ. P.] 79(a); or (2) if a separate document is required, when the judgment is entered in the civil docket under Rule 79(a) and the earlier of these events occurs: (A) it is set out in a separate document; or (B) 150 days have run from the entry in the civil docket."). Indeed, even complete "[l]ack of notice of the entry [of judgment] does not affect the time for appeal or relieve-or authorize the court to relieve-a party for failing to appeal within the time allowed ...." Fed.R.Civ.P. 77(d)(2).
Second, the propriety of the district court's denial of Mr. Cosby's motion to reopen is not before the court on this appeal. See Fed. R. App. P. 4(a)(1)(B) (requiring a party who intends to appeal a civil case to which the United States is a party to file a notice of appeal within 60 days after the district court enters the order from which the petitioner seeks to appeal).
Mr. Cosby's notice of appeal is not timely to appeal the district court's judgment, see Fed. R. App. P. 4(a), and this court is "without jurisdiction under the facts of this case." Jenkins v. Burtzloff, 69 F.2d 460, 464 (10th Cir. 1995).
APPEAL DISMISSED.