Opinion
20-8055
07-14-2021
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MELVIN EDWARD JEFFERSON, Defendant-Appellant.
D.C. Nos. 1:19-CV-00054-SWS & 2:18-CR-00008-SWS-1, (D. Wyo.)
Before PHILLIPS, MURPHY, and McHUGH, Circuit Judges.
ORDER
Gregory A. Phillips, Circuit Judge
Melvin Edward Jefferson, a federal prisoner proceeding pro se, appeals the district court's order and judgment denying his § 2255 motion. But he filed the notice of appeal after the filing deadline expired. So we conclude that this court lacks jurisdiction to consider the appeal. See Amazon, Inc. v. Dirt Camp, Inc., 273 F.3d 1271, 1274 (10th Cir. 2001) ("[W]e have an independent duty to examine our own jurisdiction.").
Because Jefferson appears pro se, we liberally construe his pleadings, but we will not act as his advocate. See United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009).
The timely filing of the 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. § 2255, the notice of appeal must be filed within 60 days after entry of the challenged order or judgment. 28 U.S.C. § 2107(b); Fed. R. App. P. 4(a)(1)(B); see also United States v. Pinto, 1 F.3d 1069, 1070 (10th Cir. 1993) (noting that the civil time limit applies to § 2255 proceedings). Although Jefferson is proceeding pro se, he still must comply with the time requirements in the procedural rules. Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007) ("[T]his court has repeatedly insisted that pro se parties follow the same rules of procedure that govern other litigants." (citation omitted)).
Here, the district court entered final judgment on July 20, 2020. To be timely, Jefferson was required to file the notice of appeal by September 18, 2020. But Jefferson didn't file the notice of appeal until September 24, 2020, after the filing deadline had passed. Jefferson cannot be excused from filing a timely appeal from the district court's final judgment: he did not seek relief from the district court, nor could he obtain it now. See Fed. R. App. P. 4(a)(5)-(6).
As did the Clerk's Office, we construe Jefferson's letter seeking a certificate of appealability (COA) as a notice of appeal. See United States v. Bojorquez-Villalobos, 632 Fed.Appx. 466, 467 (10th Cir. 2015) (unpublished) ("We construe Bojorquez-Villalobos' COA application as a notice of appeal . . .").
Though Jefferson's letter was docketed on September 24, 2020, it was dated September 21, 2020, the same date as its postmark. Even applying the prison-mailbox rule, Jefferson's notice is untimely, because it was postmarked three days after it was due. See United States v. Payne, No. 20-5021, 2020 WL 4805472, at *1 n.2 (10th Cir. May 13, 2020) (unpublished table opinion) (explaining that defendant "cannot show timely filing under Rule 4(c)(1)(A)(ii), because his mailing envelope has a postage stamp dated . . . a day after the filing deadline"). Moreover, Jefferson never stated that he deposited his letter in the prison's internal mail system. See Fed. R. App. P. 4(c)(1); Price v. Philpot, 420 F.3d 1158, 1163-67 (10th Cir. 2005).
And though Jefferson may be invoking an argument for equitable tolling in response to the Order to Show Cause, equitable tolling is not available at this procedural posture. United States v. Marquez-Bencomo, No. 20-3003, 2020 WL 3971325, at *1 (10th Cir. Mar. 13, 2020) (unpublished) (recognizing that "this court does not have the authority to allow an untimely notice of appeal" (citation omitted)); Bowles, 551 U.S. at 214 ("[T]his court has no authority to create equitable exceptions to jurisdictional requirements . . . ."); United States v. 109 Derr Ave., 758 Fed.Appx. 646, 649 n.5 (10th Cir. 2018) (unpublished) (rejecting that equitable exception should apply to jurisdictional requirements). Therefore, "[t]he time limit has run and we are without jurisdiction under the facts of this case." Jenkins v. Burtzloff, 69 F.3d 460, 464 (10th Cir. 1995).
CONCLUSION We DISMISS this appeal and DENY all other requested relief, including Jefferson's recently filed motions to supplement his opening brief.