Opinion
22-2114
10-24-2022
DENNETT JEROME CHEE, Petitioner - Appellant, v. MESCALERO APACHE TRIBAL COURT; THE ATTORNEY GENERAL OF THE STATE OF NEW MEXICO, Respondents - Appellees.
(D.C. No. 1:18-CV-01197-JB-LF) (D. N.M.)
Before PHILLIPS, MORITZ, and CARSON, Circuit Judges.
ORDER
We raise sua sponte the question of whether this court has jurisdiction to consider this appeal. Dennett Jerome Chee seeks to appeal the district court's May 12, 2020 order and judgment dismissing without prejudice his 28 U.S.C. § 2254 petition. Mr. Chee filed a pro se notice of appeal on September 22, 2022. This court issued an order to show cause why the appeal should not be dismissed for lack of jurisdiction because the notice of appeal is untimely. Mr. Chee has filed a response in which he asserts COVID-19 circumstances and detention procedures as grounds to excuse the untimely notice of appeal. Upon consideration, we dismiss this appeal for lack of appellate jurisdiction.
The timely filing of the notice of appeal in a 28 U.S.C. § 2254 case is both mandatory and jurisdictional. Bowles v. Russell, 551 U.S. 205, 209 (2007). In a § 2254 case, the notice of appeal must be filed within 30 days after entry of the order or judgment appealed from. 28 U.S.C. § 2107(a); Fed. R. App. P. 4(a)(1)(A); see Manco v. Werholtz, 528 F.3d 760, 761 (10th Cir. 2008) (order) (applying 30-day deadline to § 2254 proceedings). In this case, the district court's dismissal order and judgment were entered on May 12, 2020, and Mr. Chee's notice of appeal was due no later than June 12, 2020. Mr. Chee's notice of appeal was not filed in the district court until September 22, 2022, more than 2 years after the filing deadline had expired. Mr. Chee's response appears to be invoking an argument for equitable tolling due to COVID-19 circumstances and detention procedures. However, equitable tolling is not available to excuse an untimely notice of appeal. See Bowles, 551 U.S. at 214 ("[T]his Court has no authority to create equitable exceptions to jurisdictional requirements."). Mr. Chee is also beyond the deadline to move for an extension of time or to reopen the time to appeal in the district court. See 28 U.S.C. § 2107(c); Fed. R. App. 4(a)(5), (6). Although Mr. Chee is proceeding pro se, he still must comply with the time requirements. See Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994).
Because Mr. Chee's notice of appeal is untimely, we lack jurisdiction to consider this appeal. Mr. Chee's motion for appointment of counsel is denied as moot.
APPEAL DISMISSED.