Opinion
23-8005
02-08-2023
DON WESLEY JOHNS, Petitioner-Appellant, v. WYOMING DEPARTMENT OF CORRECTIONS STATE PENITENTIARY WARDEN, MICHAEL PACHECO; WYOMING ATTORNEY GENERAL, BRIDGET HILL, Respondents-Appellees.
D.C. No. 2:20-CV-00036-SWS (D. Wyo.)
Before TYMKOVICH, McHUGH, and MORITZ, Circuit Judges.
ORDER
This matter is before the court sua sponte following the opening of this appeal. Upon consideration of the district court's docket and the applicable law, this appeal is dismissed for lack for jurisdiction for the reasons set forth below.
Appellant Don Wesley Johns seeks to appeal the district court's order and judgment dismissing his § 2254 habeas petition. However, "[t]his Court can exercise jurisdiction only if a notice of appeal is timely filed." Allender v. Raytheon Aircraft Co., 439 F.3d 1236, 1239 (10th Cir. 2006). Appellant's pro se status does not affect this rule. See Mayfield v. U.S. Parole Comm'n, 647 F.2d 1053, 1055 (10th Cir. 1981) (dismissing pro se appeal filed three days late). In a habeas appeal like this one, the notice of appeal must be filed within 30 days after entry of the order or judgment being appealed. 28 U.S.C. § 2107(a). This court has no authority to make equitable exceptions to jurisdictional requirements. Bowles v. Russell, 551 U.S. 205, 216 (2007).
Here, the district court entered its final judgment on February 23, 2022. Appellant filed a certificate of appealability almost a year later, on January 27, 2023. See Martin v. Rios, 472 F.3d 1206, 1207 (10th Cir. 2007) (holding a motion for a certificate of appealability may be construed as a functional equivalent of a notice of appeal). Appellant did not seek an extension of time 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).
Because Appellant did not timely file a notice of appeal, the court lacks jurisdiction to consider this appeal.
APPEAL DISMISSED.