Opinion
24-5000
01-08-2024
MARQESE LYNN PAYNE, Petitioner - Appellant, v. JANET DOWLING, Warden, Respondent - Appellee.
(D.C. No. 4:17-CV-00151-JHP-FHM) (N.D. Okla.)
Before PHILLIPS, McHUGH, and CARSON, Circuit Judges.
ORDER
We raise sua sponte the question of whether this court has jurisdiction to consider this appeal. On January 4, 2024, Oklahoma state prisoner Marqese Lynn Payne filed a notice of appeal listing the appeal numbers for two prior appeals in this court (nos. 185106 and 18-5118) and seeking to appeal "from the final judgment entered in this action on the 31 day of August of 2018." We note that the judgment entered in Mr. Payne's 28 U.S.C. § 2254 case on August 24, 2018, and Mr. Payne previously appealed both the judgment and the district court's November 8, 2018 order denying his post-judgment motion in appeal nos. 18-5106 and 18-5118. Those appeals were consolidated, and this court denied a certificate of appealability with respect to those appeals in an October 8, 2019 order. See Payne v. Dowling, Nos. 18-5106 &18-5118 (Oct. 8, 2019). With respect to the instant appeal, Mr. Payne filed in this court "The Memorandum Addressing the Timely Filing of the Notice of Appeal from Judgment." Upon consideration, we dismiss Mr. Payne's instant appeal for the reasons stated below.
The timely filing of the notice of appeal in a civil case is both mandatory and jurisdictional. See Bowles v. Russell, 551 U.S. 205, 209 (2007). Federal habeas corpus cases are civil proceedings. See Browder v. Dir., Dep't of Corr. of Ill., 434 U.S. 257, 269 (1978). In a proceeding under 28 U.S.C. § 2254, 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, 762 (10th Cir. 2008) (order) (applying civil time limit to § 2254 proceeding in dismissing untimely appeal for lack of jurisdiction).
Here, Mr. Payne filed this notice of appeal on January 4, 2024, more than five years after judgment entered in his § 2254 case. We therefore lack jurisdiction to consider this untimely appeal. We have no authority to waive jurisdictional requirements. See Bowles, 551 U.S. at 214 ("[T]his Court has no authority to create equitable exceptions to jurisdictional requirements."). Moreover, Mr. Payne cannot appeal the same judgment twice. See United States v. Mendes, 912 F.2d 434, 437-38 (10th Cir. 1990).
APPEAL DISMISSED.