Opinion
21-3139
09-03-2021
JAY STEVEN HEIDE, Petitioner - Appellant, v. SECRETARY OF CORRECTIONS, Respondent - Appellee.
(D.C. No. 5:21-CV-03044-SAC) (D. Kan.)
Before HOLMES, BACHARACH, and EID, Circuit Judges.
ORDER
This matter is before the court sua sponte to consider whether we have jurisdiction to consider this appeal. Pro se Appellant Jay Steven Heide seeks to appeal the district court's order and judgment dismissing his 28 U.S.C. § 2254 application as barred by the statute of limitations. On July 30, 2021, this court issued a show cause order, challenging the timeliness of Appellant's notice of appeal. Appellant did not file a response to the show cause order and, instead, submitted a motion to appoint counsel and an opening brief, neither of which was responsive to the show cause order.
"A timely notice of appeal is both mandatory and jurisdictional." Allender v. Raytheon Aircraft Co., 439 F.3d 1236, 1239 (10th Cir. 2006) (citation omitted). 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); see Manco v. Werholtz, 528 F.3d 760, 761 (10th Cir. 2008) (order) (applying civil time limit to § 2254 proceedings). Although Appellant is proceeding pro se, he still must comply with the time requirements in the procedural rules. See Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994).
In this case, the district court entered judgment dismissing the 28 U.S.C. § 2254 application on April 20, 2021. Appellant did not file any post-judgment motions that would serve to toll or extend the time he had to file a notice of appeal from the judgment. See Fed. R. App. P. 4(a)(4)(A)(vi). Accordingly, pursuant to Rule 4(a)(1)(A) of the Federal Rules of Appellate Procedure, his notice of appeal was due on or before May 20, 2021. However, Appellant's notice of appeal was not received by the district court until July 27, 2021, more than two months after the deadline to file the notice of appeal passed.
"[T]his court may not extend the time for filing a notice of appeal." Savage v. Cache Valley Dairy Ass'n, 737 F.2d 887, 889 (10th Cir. 1984). "Only the district court may do so and only under limited circumstances and for a limited time." Alva v. Teen Help, 469 F.3d 946, 950 (10th Cir. 2006) (citing 28 U.S.C. § 2017(c); Fed. R. App. P. 4(a)(5)). Here, Appellant did not request an extension of time from the district court within which to file his notice of appeal, see Fed. R. App. P. 4(a)(5)(A), and his opportunity to do so has expired, see Fed. R. App. P. 4(a)(5)(A)(i) (requiring a party to move for an extension of time to file a notice of appeal "no later than 30 days after" he was otherwise required to file the notice).
Appellant likewise appears ineligible for an order reopening the time to appeal. See Fed. R. App. P. 4(a)(6) (providing that district court may reopen the time to file an appeal, "but only if all the [specified] conditions are satisfied").
Thus, no exception to the late appeal is available to Appellant. The United States Supreme Court has made clear that federal courts "ha[ve] no authority to create equitable exceptions to jurisdictional requirements." Bowles v. Russell, 551 U.S. 205, 214 (2007). Therefore, "[t]he time limit has run and we are without jurisdiction under the facts of this case." Jenkins v. Burtzloff, 69 F.2d 460, 464 (10th Cir. 1995).
APPEAL DISMISSED.