Opinion
22-5105
02-09-2023
NATHAN J. ALLEN, Petitioner - Appellant, v. SCOTT CROW, Respondent - Appellee.
(D.C. No. 4:21-CV-00527-CVE-SH) (N.D. Okla.)
Before PHILLIPS, EID, and CARSON, Circuit Judges.
ORDER
We raise sua sponte the question of whether this court has jurisdiction to consider this appeal. Nathan J. Allen, an Oklahoma state prisoner proceeding pro se, appeals the district court's order and judgment dismissing his 28 U.S.C. § 2254 habeas corpus petition. Mr. Allen filed the notice of appeal after the filing deadline expired. We issued an order directing Mr. Allen to show cause why this appeal should not be dismissed for lack of appellate jurisdiction. Mr. Allen has filed a show cause response asserting that his facility's mail system lacks "consistency" and that he tried to meet the filing deadline. Upon consideration, we dismiss this 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. See 28 U.S.C. § 2107(a); Fed. R. App. P. 4(a)(1)(A); 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, the district court entered the order of dismissal and judgment on October 14, 2022. To be timely, Mr. Allen was required to file the notice of appeal by Monday, November 14, 2022. Mr. Allen filed a notice of appeal which includes a declaration that he deposited the notice of appeal in his facility's internal mail system, first-class postage prepaid, on November 15, 2022. See Fed. R. App. P. 4(c)(1)(A)(i) (prison mailbox rule to establish filing date of notice of appeal). Using November 15, 2022 as the operative filing date, Mr. Allen's notice of appeal is one day late. Mr. Allen's show cause response appears to be invoking arguments for equitable tolling of the filing deadline. 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."). Although Mr. Allen is proceeding pro se, he still must comply with procedural filing requirements. See Ogden v. San Juan Cty., 32 F.3d 452, 455 (10th Cir. 1994). Further, Mr. Allen did not move in the district court for an extension of time to file the notice of appeal and he is now beyond the time to do so. See 28 U.S.C. § 2107(c); Fed. R. App. P. 4(a)(5).
Because Mr. Allen's notice of appeal is untimely, we lack jurisdiction to consider this appeal.
APPEAL DISMISSED.