Opinion
No. 07-6213.
April 4, 2008.
Jonathon E. Boatman, William Lee Borden Jr., Office of the United States Attorney, Oklahoma City, OK, for Plaintiff-Appellee.
Before O'BRIEN, EBEL, and GORSUCH, Circuit Judges.
ORDER DENYING LEAVE TO PROCEED ON APPEAL IN FORMA PAUPERIS AND DISMISSING APPEAL
James Lynn Hill was convicted of being a felon in possession of a firearm and sentenced to 120 months imprisonment. He appealed and on May 18, 2007, we affirmed. United States v. Hill, 224 Fed. Appx. 825 (10th Cir. 2007) (unpublished). On August 16, 2007, after the mandate issued, Hill sought leave of the district court to correct or modify the record on appeal, claiming various errors in the indexes and headings of the trial and sentencing transcripts. On August 23, 2007, the court denied Hill's application on the merits.
The mandate issued on June 11, 2007.
The court presumed Hill's application was not moot because he intended to file a petition for writ of certiorari with the Supreme Court. Hill had actually filed such a petition on August 16, 2007, prior to the issuance of the district court's order. The Supreme Court subsequently denied Hill's petition. See Hill v. United States, ___ U.S. ___, 128 S.Ct. 327, 169 L.Ed.2d 230 (2007).
On August 31, 2007, Hill appealed from the district court's denial of his application for leave to correct or modify the record. He also tiled an ex parte notification of Brady request/violation, which we construed as a motion requesting discovery, and a letter regarding his appeal, which we construed as a motion to correct the record. Hill's appeal is moot.
Because the issue of mootness implicates our jurisdiction, we may consider it sua spoute, See McClendon v. City of Albuquerque, 100 F.3d 863, 867 (10th Cir. 1996). Without a pending appeal, there is no record to correct, and we could not afford Hill any effectual relief. See In re Overland Park Fin. Corp., 236 F.3d 1246, 1254 (10th Civ.2001) ("A case is moot when it is impossible for the court to grant any effectual relief whatever to a prevailing party.") (quotations omitted).
We therefore DISMISS Hill's appeal.
We likewise DISMISS his motion to correct the record and his motion requesting discovery. We also DENY Hill's motion to proceed in forma pauperis on appeal. Hill is obligated to continue making partial payments until all fees have been paid, as ordered by the district court.
The district court determined Hill should be required to pay a partial filing fee of $150.00, one-third of the required filing fee.