F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 2 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
PAUL LUNA VASQUEZ,
Petitioner - Appellant, Nos. 98-1447 and 98-1482
v. (D. Colorado)
DONICE NEAL and ATTORNEY (D.C. No. 95-S-2966)
GENERAL OF THE STATE OF
COLORADO,
Respondents - Appellees.
ORDER AND JUDGMENT *
Before ANDERSON , KELLY , and BRISCOE , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
This order and judgment is not binding precedent, except under the
*
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
In these two consolidated appeals, Paul Luna Vasquez seeks certificates of
probable cause 1
which would enable him to appeal two final orders of the district
court. In Appeal No. 98-1447, Vasquez seeks to appeal from the district court’s
order denying his habeas corpus petition, filed pursuant to 28 U.S.C. § 2254. In
Appeal No. 98-1482, Vasquez seeks to appeal from the district court’s order
denying his Fed. R. Civ. P. 60(b) motion. That motion sought relief from (1) the
order and judgment denying his habeas petition, and from (2) another order of the
district court holding that Vasquez’s “Motion for Certificate of Appealability,” 2
which the district court construed as also including a notice of appeal, was
untimely filed. We conclude that we are without jurisdiction to consider Appeal
No. 98-1447. With respect to Appeal No. 98-1482, we conclude that Vasquez has
not made a “substantial showing of the denial of [a] federal right,” Barefoot v.
Estelle , 463 U.S. 880, 893 (1983) (citation omitted), and therefore deny his
request for a certificate of probable cause.
BACKGROUND
Vasquez’s habeas petition was filed on November 29, 1995, well before
1
the passage of the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996). Therefore, the provisions
of the AEDPA do not apply to Vasquez’s case.
Vasquez should properly have sought a certificate of probable cause, rather
2
than a certificate of appealability, because, as noted above, his habeas petition
was filed before the enactment of the AEDPA.
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In 1975, Vasquez was convicted in Colorado state court of second-degree
assault, for which he was sentenced to 0-10 years’ imprisonment, and first-degree
perjury, for which he was sentenced to 5 years’ imprisonment. He was paroled on
August 16, 1976.
Less than one year later, his parole was revoked because he was charged
with and subsequently convicted of manslaughter. He was adjudicated a habitual
criminal, and was sentenced to a term of 25-40 years’ imprisonment. He was
paroled again, however, on September 10, 1988. At that time, Vasquez had
served 10 years, 11 months, and 18 days of the manslaughter sentence. In
addition, he had been awarded 14 years, 7 months, and 19 days of good time
credits toward his sentence. Therefore, he had received 25 years, 7 months, and 7
days credit toward discharge of his 25-to-40-year sentence.
Approximately three years later, in December 1991, Vasquez’s parole was
again revoked, due to charges of possession of a controlled substance. Vasquez
originally pled guilty to four counts of possession, and was sentenced to 6 years’
imprisonment, with the sentence to run concurrently with the 25-to-40-year
sentence on which he had been paroled. Vasquez withdrew this guilty plea,
however, and was later convicted by a jury of four counts of possession. He was
sentenced to twelve years’ imprisonment on each count, with the sentences to run
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concurrent to each other but consecutive to the 25-to-40-year manslaughter
sentence.
Vasquez was not awarded good time credit—or any other kind of
credit—on his manslaughter sentence during the time he was on parole between
1988 and 1991. The Colorado statute relating to the issuance of good time credits
while on parole, Colo. Rev. Stat. § 17-2-206, was repealed in 1984. The crux of
Vasquez’s habeas petition is his argument that his manslaughter sentence should
have expired on April 2, 1991, some eight months before his parole was revoked.
Vasquez first filed a claim for post-conviction relief in Colorado state
court. The state district court denied the petition in February 1994, and the
Colorado Supreme Court affirmed the denial on April 3, 1995. Vasquez v.
Zavaras , 893 P.2d 105 (Colo. 1995).
On November 29, 1995, Vasquez filed a § 2254 petition in the district
court. His petition alleges that the application of the new Colorado parole statute,
rather than the statute in effect at the time he was sentenced, constituted a denial
of his right to due process of law and equal protection of the laws, and violated
the constitutional prohibition against ex post facto laws. Vasquez acknowledged
that he is not entitled to release from custody, in view of his four concurrent 12-
year sentences for possession of a controlled substance. However, Vasquez
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sought “relief in the form of a declaration that he has completed his 1977
sentence, and did so while on parole.” Petitioner’s Br. at 9.
The district court assigned the case to a magistrate judge, who, on
January 5, 1996, issued a report recommending that the district court dismiss
Vasquez’s habeas petition on res judicata grounds, because Vasquez had raised
and previously litigated similar issues in separate § 1983 actions against prison
officials. The district court adopted the disposition of the magistrate judge in an
order issued on February 23, 1996. Vasquez appealed, and we directed the
district court to vacate its order dismissing Vasquez’s petition and to adjudicate
the petition on its merits, so long as Vasquez had exhausted state remedies.
Vasquez v. Neal , No. 96-1083, slip op. (10th Cir. July 3, 1996); R. Doc. 26.
On October 14, 1997, after appointing counsel to represent Vasquez and
after holding an evidentiary hearing, the magistrate judge issued a report
addressing the merits of Vasquez’s habeas petition. The magistrate judge found
that the application of the new parole scheme did not violate the constitutional
prohibition against ex post facto laws, and did not violate any other provision of
the Constitution. Accordingly, the magistrate judge recommended that the district
court deny Vasquez’s petition. On September 16, 1998, the district court adopted
the disposition of the magistrate judge and denied Vasquez’s petition. Judgment
was entered in the case on September 17, 1998.
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While the case was pending before the district court, Vasquez apparently
became impatient at the pace with which the district court was proceeding, and on
August 31, 1998, filed a petition for a writ of mandamus with this court. Vasquez
sought an order directing the district court to proceed with his case. On
September 18, 1998, unaware that the district court had only the previous day
entered judgment in the case, we ordered the government to respond to Vasquez’s
petition for writ of mandamus. On September 28, 1998, the government filed a
brief with this court. On October 27, 1998, having been notified through the
briefs that the district court had already acted in this matter, we dismissed the
petition for writ of mandamus as moot.
On November 2, 1998, forty-six days after judgment was entered, Vasquez
filed a document captioned “Motion for Certificate of Appealability” with the
district court. R. Doc. 67. Because no separate notice of appeal had been filed,
the district court treated the document “as if it include[d] a notice of appeal.” R.
Doc. 69, at 1. The district court denied Vasquez’s request for a certificate, and
construed the document as an untimely notice of appeal, noting that the document
had not been filed within 30 days of entry of judgment, as required by Fed. R.
App. P. 4(a).
On December 15, 1998, counsel for Vasquez filed a motion seeking relief
from the district court’s order and judgment denying the habeas petition, and from
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the order and judgment construing Vasquez’s November 2, 1998, filing as an
untimely notice of appeal. Vasquez argued that relief was proper under Fed R.
Civ. P. 60(b) and Fed. R. App. P. 4(a)(5), because, in light of the mandamus
petition pending before this court at the time the district court entered judgment
denying Vasquez’s petition, Vasquez’s failure to file a timely notice of appeal
constituted a mistake or excusable neglect. Specifically, Vasquez stated that “[i]t
was counsel’s understanding and belief that . . . because the matter was under
consideration in the Tenth Circuit Court of Appeals . . . , the time for filing the
Notice of Appeal . . . was tolled.” R. Doc. 74, at ¶ 14. Vasquez asked the district
court to vacate its original judgment, issued September 17, 1998, and reissue it at
a later date, which would allow Vasquez to file a timely notice of appeal.
On December 22, 1998, the district court denied Vasquez’s Rule 60 motion,
finding no excusable neglect in counsel’s failure to file a timely notice of appeal.
Vasquez now appeals from both the district court’s denial of his habeas
corpus petition, and from the district court’s denial of his motion for Rule 60(b)
relief.
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DISCUSSION
I. Appeal No. 98-1447
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Fed. R. App. P. 4(a)(1)(A) provides that “the notice of appeal . . . must be
filed with the district clerk within 30 days after the judgment or order appealed
from is entered.” In this case, judgment was entered on September 17, 1998;
Vasquez had until October 17, 1998 to file a notice of appeal. Vasquez, however,
filed nothing until November 2, 1998, when his “Motion for Certificate of
Appealability” was filed, which the district court construed as a joint motion for
certificate of probable cause and a notice of appeal.
Fed. R. App. P. 4(a)(5) provides that “[t]he district court may extend the
time to file a notice of appeal if: (i) a party so moves no later than 30 days after
the time prescribed by this Rule 4(a) expires; and (ii) that party shows excusable
neglect or good cause.” All requests for extensions of time under Fed. R. App. P.
4(a)(5) must be filed with the district court, not the court of appeals. See Savage
v. Cache Valley Dairy Ass’n , 737 F.2d 887, 889 (10th Cir. 1984). Thus, Vasquez
had until November 16, 1998, to file any request for an extension of time to file
his notice of appeal. Vasquez’s document filed on November 2, 1998, even
construed liberally, did not contain a request for extension of time. Perhaps
Vasquez’s Rule 60(b) motion, filed December 15, 1998, could be construed as a
Rule 4(a)(5) motion for extension of time, but that motion was not filed on or
before November 16.
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“[T]he time periods established by Fed. R. App. P. 4 are ‘mandatory and
jurisdictional.’” Senjuro v. Murray , 943 F.2d 36, 37 (10th Cir. 1991) (quoting
Browder v. Department of Corrections , 434 U.S. 257, 264 (1978)); see also
Gooch v. Skelly Oil Co. , 493 F.2d 366, 368 (10th Cir. 1974) (stating that “[a]
court of appeals acquires jurisdiction of an appeal only upon the filing of a timely
notice of appeal and this requirement is mandatory and jurisdictional”). Because
Vasquez did not file a timely notice of appeal, or even a timely request for
extension of time, we are without jurisdiction to hear his appeal.
II. Appeal No. 98-1482
Because the district court’s order denying Vasquez’s Rule 60(b) motion
was filed on December 22, 1998, and Vasquez filed a notice of appeal on
December 23, 1998, well within the 30-day period, we have jurisdiction to
consider Appeal No. 98-1482. In the Rule 60(b) motion, Vasquez argued, as
discussed above, that his failure to file a timely notice was excused by the
“extraordinary circumstances” of the pending mandamus petition, and he asked
the district court to vacate its September 17, 1998, judgment and reissue it. R.
Doc. 74, at ¶ 31. We have approved of this type of Rule 60(b) relief in
appropriate cases. See Wallace v. McManus , 776 F.2d 915, 917 (10th Cir. 1985).
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Because “[w]e review . . . the disposition of Rule 60(b) motions for an
abuse of discretion,” Woodworker’s Supply, Inc. v. Principal Mut. Life Ins. Co. ,
170 F.3d 985, 992 (10th Cir. 1999), and because a certificate of probable cause
should issue only when a habeas petitioner has made a “substantial showing of the
denial of [a] federal right,” Barefoot , 463 U.S. at 893 (citation omitted), “a
certificate of probable cause to appeal the denial of [a] Rule 60(b) motion should
issue only if [the petitioner] has made a substantial showing that the district court
abused its discretion by denying the Rule 60(b) motion,” Lindsey v. Thigpen , 875
F.2d 1509, 1512 (11th Cir. 1989); see also Lynch v. Blodgett , 999 F.2d 401, 402-
03 (9th Cir. 1993). 3
We note also that “Rule 60(b) is not intended to be a substitute for a direct
appeal.” Cashner v. Freedom Stores, Inc. , 98 F.3d 572, 576 (10th Cir. 1996); see
also Halicki v. Louisiana Casino Cruises, Inc. , 151 F.3d 465, 471 (5th Cir. 1998)
(stating that “Rule 60(b) is not a substitute for a timely appeal” and “[c]ourts
should not grant relief when the moving party has not been diligent in protecting
its own rights by filing an appeal from an adverse judgment” (citation omitted));
3
Had Vasquez’s habeas petition been filed after the passage of the AEDPA,
our inquiry would be simpler. The updated version of 28 U.S.C. § 2253 allows
certificates of appealability to issue only upon a “substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (emphasis added). We
have since held that certificates of appealability may not issue for violations of
federal statutes or federal rules, but only for violations of constitutional rights.
See United States v. Gordon, 172 F.3d 753 (10th Cir. 1999).
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United States v. O’Neil , 709 F.2d 361, 373 (5th Cir. 1983) (stating that “[e]xcept
in truly extraordinary cases, Rule 60(b) relief should not be used to extend the
time for appeal”).
Vasquez grounded his motion in Rule 60(b)(1) and Rule 60(b)(6). See R.
Doc. 74, at ¶ 31. Rule 60(b)(1) allows a court to grant relief from a judgment for
“mistake, inadvertence, surprise, or excusable neglect.” Vasquez argues that,
because of the pending mandamus petition, his failure to file a timely notice of
appeal constituted a mistake or excusable neglect. However, “Rule 60(b)(1) relief
is not available for a party who simply misunderstands the legal consequences of
his deliberate acts.” Cashner , 98 F.3d at 577; see also Pelican Prod. Corp. v.
Marino , 893 F.2d 1143, 1146 (10th Cir. 1990) (stating that “[c]arelessness by a
litigant or his counsel does not afford a basis for relief under Rule 60(b)(1)”).
Indeed, “attorney error based on a misunderstanding of the law [is] an insufficient
basis for excusing a failure to comply with a deadline.” Advanced Estimating
Sys., Inc. v. Riney , 130 F.3d 996, 998 (11th Cir. 1997) (also stating that “no
circuit that has considered the issue . . . has held that an attorney’s failure to
grasp the relevant procedural law is ‘excusable neglect’”). Vasquez and his
attorney should not have assumed that the 30-day notice of appeal period did not
start to run until the mandamus proceedings were completed. This type of
misunderstanding “is not the sort of mistake on which . . . Rule 60(b)[(1)] relief
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could be based.” O’Neil , 709 F.2d at 373. The district court did not abuse its
discretion in determining that this action was not excusable neglect.
Rule 60(b)(6) is a catch-all provision which allows a court to grant relief
from a judgment for “any other reason justifying relief from the operation of the
judgment.” However, this “grand reservoir of equitable power,” Pierce v. Cook &
Co. , 518 F.2d 720, 722 (10th Cir. 1975) (en banc) (citations omitted), may be
invoked only “in extraordinary circumstances and only when necessary to
accomplish justice.” Cashner , 98 F.3d at 579. For instance, courts have granted
relief under Rule 60(b)(6) “when, after entry of judgment, events not
contemplated by the moving party render enforcement of the judgment
inequitable,” id. (citing cases); where the moving party is an indigent,
unrepresented litigant, see Pelican Prod. Corp. , 893 F.2d at 1147 (citing cases); or
for other extraordinary reasons. No such compelling reasons exist in this case.
“[T]he broad power granted by clause (6) is not for the purpose of relieving a
party from free, calculated and deliberate choices he has made. A party remains
under a duty to take legal steps to protect his own interests.” Cashner , 98 F.3d at
580 (citation omitted). We find no abuse of discretion in the district court’s
decision not to grant Vasquez relief under Rule 60(b)(6).
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Accordingly, we conclude that Vasquez has failed to make a substantial
showing that the district court abused its discretion by denying the Rule 60(b)
motion.
CONCLUSION
For the foregoing reasons, we conclude that we are without jurisdiction to
hear Appeal No. 98-1447, and we DISMISS that appeal. In addition, with respect
to Appeal No. 98-1482, we conclude that Vasquez has failed to make a substantial
showing of the denial of a federal right, and we therefore DENY his request for a
certificate of probable cause and DISMISS that appeal.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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