Opinion
24-2054
04-26-2024
TERRICK L. THOMPKINS, Petitioner - Appellant, v. DWAYNE SANTISTEVAN, Warden; HECTOR H. BALDERAS, Attorney General of the State of New Mexico, Respondents - Appellees.
(D.C. No. 2:21-CV-00005-KWR-DLM) (D. N.M.)
Before TYMKOVICH, McHUGH, and EID, Circuit Judges.
ORDER
This matter is before the court on: (1) the jurisdictional show cause order it issued on April 8, 2024, challenging the timeliness of pro se petitioner-appellant Terrick L. Thompkins' notice of appeal; and (2) Mr. Thompkins' 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.
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); 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. § 2254, the petitioner must file a notice of appeal within 30 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).
"Proceeding pro se does not relieve [Mr. Thompkins] 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 Cosby v. Astrue, 507 Fed.Appx. 819, 821 (10th Cir. 2013) (unpublished). Indeed, this court has "repeatedly insisted that pro se parties follow the same rules of procedure that govern other litigants." Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
In the action underlying this appeal, the district court entered its order adopting Magistrate Judge Damian L. Martinez's Proposed Findings and Recommended Disposition and denying Mr. Thompkins' amended § 2254 petition on February 9, 2024. [ECF No. 33]. The district court entered judgment by separate order that same day. [ECF No. 34]. Accordingly, Mr. Thompkins' notice of his intent to appeal the judgment was due on or before March 11, 2024. See Fed. R. App. P. 4(a)(1)(A) (notice of appeal in a civil case "must be filed with the district clerk within 30 days after entry of the judgment or order appealed from"); Fed. R. App. P. 26(a)(1)(C) (if last day of prescribed time period falls on a Saturday, Sunday or legal holiday, the period continues to run until the end of the next business day). However, Mr. Thompkins did not mail his notice of appeal until April 2, 2024 [ECF No. 35], and this court did not receive and forward it to the district court as a misdirected notice of appeal until April 5, 2024. [ECF No. 7].
In his response, Mr. Thompkins acknowledges that the notice of appeal was late, but argues that his difficulties in obtaining this court's address and in navigating the legal system demonstrate "good cause of why [his] appeal is late." Mr. Thompkins did not, however, seek an extension of time from the district court within which to file his notice of appeal nor did he ask the district court to reopen the time to appeal. See Fed. R. App. P. 4(a)(5)(A); Fed. R. App. P. 4(a)(6). The time for requesting either has expired. See id.
Further, this court has no authority to make equitable exceptions to jurisdictional requirements, see Bowles v. Russell, 551 U.S. 205, 216 (2007), nor can it extend the time for filing a notice of appeal. Savage v. Cache Valley Dairy Ass'n, 737 F.2d 887, 889 (10th Cir. 1984).
Mr. Thompkins' 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.