FILED
United States Court of Appeals
Tenth Circuit
June 17, 2009
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
ROGER SCOTT BLACKBURN,
Petitioner - Appellant,
v. No. 09-1173
(D.C. No. 08-CV-02559-ZLW)
COLORADO DEPT. OF CORR. (D. Colo.)
EXECUTIVE DIRECTOR,
Respondent - Appellee.
___________________________
ROGER SCOTT BLACKBURN,
Petitioner - Appellant, No. 09-1197
(D.C. No. 08-CV-02692-ZLW)
v. (D. Colo.)
KEVIN MILYARD, Warden,
Respondent - Appellee.
ORDER
Before HARTZ, EBEL, and O’BRIEN, Circuit Judges.
In these appeals, Petitioner-Appellant Roger Scott Blackburn seeks
certificates of appealability (“COA”), see 28 U.S.C. § 2253(c), that would enable
him to appeal two separate decisions of the district court, entered in two different
proceedings, denying Blackburn habeas relief under 28 U.S.C. § 2241. 1 For the
following reasons, we deny both of Blackburn’s requests for COA.
I. PROCEDURAL POSTURE OF THESE APPEALS
In each of these cases, the district court entered an order dismissing without
prejudice Blackburn’s petitions seeking § 2241 relief. In response to those
decisions, Blackburn did not immediately file notices of appeal, but instead filed
with the district court motions seeking reconsideration. See Fed. R. Civ. P. 60(b).
Even applying the prison mailbox rule, see Manco v. Werholtz, 528 F.3d 760, 762
(10th Cir.), cert denied, 129 S. Ct. 510 (2008), however, Blackburn filed each of
these two motions for reconsideration more than ten days after the district court
entered its decisions denying him § 2241 relief. Thus, these reconsideration
motions did not toll the time Blackburn had to appeal from the district court’s
orders initially denying him § 2241 relief. See Fed. R. App. P. 4(a)(4)(A)(vi); see
also Watkins v. Leyba, 543 F.3d 624, 626 n.3 (10th Cir. 2008); Manco, 528 F.3d
at 761-62. And the thirty-day time period that Blackburn had to file an appeal
expired before he did file any notice of appeal. See Fed. R. App. P. 4(a)(1)(A);
see also Manco, 528 F.3d at 761-62. Therefore, we lack jurisdiction to consider
1
We grant Blackburn’s motions to proceed in forma pauperis in each of
these appeals. See 28 U.S.C. § 1915; see also Yang v. Archuleta, 525 F.3d 925,
927 (10th Cir. 2008).
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any appeal challenging the district court’s decisions denying Blackburn § 2241
relief. See Manco, 528 F.3d at 761-62.
Blackburn did, however, file timely notices of appeal from each of the two
district court orders denying his motions for reconsideration. See Fed. R. App. P.
4(a). We, therefore, have jurisdiction to review those decisions.
II. CERTIFICATE OF APPEALABILITY
Appeal No. 09-1173 stems from Blackburn’s § 2241 petition seeking credit
against his sentence for time spent in pretrial confinement. The district court
dismissed this § 2241 petition without prejudice because Blackburn had not yet
exhausted his state-court remedies.
Appeal No. 09-1197 stems from Blackburn’s § 2241 petition challenging
the revocation of his parole. The district court also dismissed that petition
without prejudice, concluding that Blackburn had “fail[ed] to provide a clear
statement of his claims in this action.”
At issue in these appeals, then, is whether the district court abused its
discretion in refusing to reconsider its orders dismissing each of Blackburn’s
§ 2241 petitions without prejudice. See Butler v. Kempthorne, 532 F.3d 1108,
1110 (10th Cir. 2008), cert. denied, 129 S. Ct. 952 (2009). To be entitled to
review of the denial of reconsideration in a § 2241 proceeding, however,
Blackburn must first obtain a COA. See Dulworth v. Jones, 496 F.3d 1133,
1135-36 (10th Cir. 2007) (requiring COA to appeal from order of costs entered in
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§ 2241 proceeding); see also Fuller v. Kansas, Nos. 08-3296, 08-3305, 08-3322,
2009 WL 1067823, at *1 n.1 (10th Cir. Apr. 22, 2009) (unpublished); Blackburn
v. Williams, 22 Fed. App’x 975, 975-76 (10th Cir. Nov. 23, 2001) (unpublished).
He can do so only by making “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). Such a showing requires
Blackburn to establish that “reasonable jurists could debate whether (or, for that
matter, agree that) the [motions for reconsideration] should have been resolved in
a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 483-84
(2000) (quotations omitted). Liberally construing his COA requests filed with
this court, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), however,
Blackburn has failed to make this showing. Therefore, we DENY his requests for
COA in both appeal No. 09-1173 and appeal No. 09-1197 and DISMISS each of
these appeals.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
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