Portley-El v. Milyard

FILED
United States Court of Appeals
Tenth Circuit

February 3, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

PATRICK PORTLEY-EL,

Petitioner-Appellant,

v. No. 09-1327
(D.C. No. 06-cv-00146-WYD-KLM)
KEVIN MILYARD; COLORADO (D. Colo.)
ATTORNEY GENERAL,

Respondents-Appellees.

ORDER AND JUDGMENT *

Before KELLY, BRISCOE, and HOLMES, Circuit Judges.

Petitioner-Appellant Patrick Portley-El, a Colorado state prisoner appearing

pro se, 1 seeks a certificate of appealability (“COA”) to challenge the district

court’s denial of his application for a writ of habeas corpus pursuant to 28 U.S.C.

*
This Order and Judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1. After examining the briefs and the appellate record, this three-judge
panel determined unanimously that oral argument would not be of material
assistance in the determination of this matter. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
1
We construe Mr. Portley-El’s pro se filings liberally. See Haines v.
Kerner, 404 U.S. 519, 520–21 (1972); Van Deelen v. Johnson, 497 F.3d 1151,
1153 n.1 (10th Cir. 2007).
§ 2241 (the “petition”). 2 He also moves for leave to proceed in forma pauperis on

appeal. We exercise jurisdiction under 28 U.S.C. §§ 1291 and 2253(c)(1)(A).

See Montez v. McKinna, 208 F.3d 862, 868–69 (10th Cir. 2000) (holding that §

2253(c)(1)(A) applies when a state habeas petitioner proceeds under § 2241). For

the reasons set forth below, we conclude that Mr. Portley-El failed to file a timely

notice of appeal and that the district court erred in granting his request to reopen

the time to file an appeal. Accordingly, we lack jurisdiction to consider either the

COA application or the merits of this appeal. Consequently, we reverse the

district court’s order granting the request to reopen and dismiss Mr. Portley-El’s

appeal. We grant his motion to proceed in forma pauperis.

BACKGROUND

Mr. Portley-El was incarcerated in the Sterling Correctional Facility of the

Colorado Department of Corrections (“CDOC”) at the time of the events

underlying the petition. On February 25, 2001, Mr. Portley-El allegedly refused

to comply with a “lock-down” order from prison officials and was handcuffed and

physically escorted to his cell. After an administrative segregation hearing, Mr.

2
Mr. Portley-El filed his petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. As the magistrate judge and district court noted, however,
the petition more appropriately was presented under 28 U.S.C. § 2241 because it
“involv[es] revocation of good time credits or other sentence shortening issues”
rather than “the validity of a conviction and sentence.” R. at 85–86
(Recommendation of U.S. Magistrate Judge, filed Dec. 1, 2008 (citing, inter alia,
McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 811–12 (10th Cir. 1997))); see R.
at 97–98 (Order Adopting and Affirming Magistrate Judge’s Recommendation,
filed Dec. 29, 2008).

-2-
Portley-El was found guilty of two violations of the Code of Penal Discipline: (1)

advocating or creating facility disruption, and (2) disobeying a lawful order. Mr.

Portley-El subsequently filed a habeas petition seeking to expunge the

disciplinary sanction from his record, to restore his lost good-time and earned-

time credits, and to recover costs and reasonable interest. He asserted that the

disciplinary proceedings violated his due process rights and that review of this

proceeding was not held in a timely manner.

On December 1, 2008, the magistrate judge filed a recommendation with

the district court (“Recommendation”). After reviewing the merits, the magistrate

judge recommended that the petition be denied. The magistrate judge rejected

Mr. Portley-El’s due process claim because Colorado law did not create a liberty

interest in good-time or earned-time credits; therefore, Mr. Portley-El could not

properly assert that he was deprived of such an interest without due process. The

magistrate judge instructed Mr. Portley-El to file any objections with the district

court within ten days. Furthermore, the magistrate judge warned that “[a] party’s

failure to serve and file specific, written objections waives de novo review of the

Recommendation by the district judge and also waives appellate review of both

factual and legal questions.” R. at 94 (citations omitted). The magistrate judge

cautioned Mr. Portley-El that “[a] party’s objections to this Recommendation

must be both timely and specific to preserve an issue for de novo review by the

district court or for appellate review.” Id. Despite these warnings, Mr. Portley-El

-3-
filed no objections with the district court within the prescribed time period.

Because Mr. Portley-El neglected to file any objections, the district court

reviewed the Recommendation for clear error and found that the analysis was

“well reasoned and sound.” Id. at 98. The district court accordingly adopted and

affirmed the Recommendation. And, consequently, it denied the habeas petition

and dismissed the action with prejudice. On December 30, 2008, the district court

entered judgment in favor of the respondents. 3

On June 25, 2009, Mr. Portley-El filed a request for clarification of the

district court’s judgment. Among other things, Mr. Portley-El claimed that he

had not received notice of the judgment. The district court construed this motion

as a request to reopen the time to file an appeal, pursuant to Federal Rule of

Appellate Procedure 4(a)(6). On July 14, 2009, having found that Mr. Portley-El

did not receive notice of the entry of judgment within twenty-one days after the

entry, the district court granted the request and gave Mr. Portley-El fourteen days

in which to file a notice of appeal.

On July 24, 2009, Mr. Portley-El filed a notice of appeal. He also filed a

motion for leave to proceed in forma pauperis. On August 3, 2009, the district

court denied Mr. Portley-El’s request for a COA, as well as his motion to proceed

3
On May 18, 2009, Mr. Portley-El also filed a petition for a
determination. In this petition, Mr. Portley-El sought to have the district court
promptly issue an order on his habeas petition. On May 18, 2009, the district
court denied the petition for a determination as moot.

-4-
in forma pauperis on appeal. Mr. Portley-El then filed with this court his

application for a COA and motion for leave to proceed in forma pauperis. 4

DISCUSSION

We must first address the timeliness of Mr. Portley-El’s appeal. 5 “We

acquire jurisdiction only on the filing of a timely notice of appeal.” Watkins v.

Leyba, 543 F.3d 624, 626 (10th Cir. 2008); accord Bowles v. Russell, 551 U.S.

205, 209 (2007) (“[T]he taking of an appeal within the prescribed time is

mandatory and jurisdictional.” (internal quotation marks omitted)); Fed. R. App.

P. 3(a)(1) (“An appeal permitted by law as of right from a district court to a court

of appeals may be taken only by filing a notice of appeal with the district clerk

within the time allowed by Rule 4.”). In a civil action, a notice of appeal

ordinarily must be filed with the district court within thirty days after the entry of

4
On August 24, 2009, we entered an order directing the parties to file
memoranda addressing whether Mr. Portley-El waived his appellate rights by
failing to object to the magistrate judge’s recommendation. E.g., Morales-
Fernandez v. INS, 418 F.3d 1116, 1119 (10th Cir. 2005) (holding that, under the
firm waiver rule, “a party who fails to make a timely objection to the magistrate
judge’s findings and recommendations waives appellate review of both factual
and legal questions”). The parties filed briefs on this issue. Mr. Portley-El also
filed a brief on the merits. Given our ultimate conclusion below that we lack
jurisdiction, we need not determine whether our firm waiver rule would also bar
Mr. Portley-El from appellate review.
5
Although the State has not questioned our jurisdiction to consider
this appeal, “[e]very federal appellate court has a special obligation to satisfy
itself . . . of its own jurisdiction . . . even though the parties are prepared to
concede it.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 95 (1998)
(internal quotation marks omitted).

-5-
the judgment. 28 U.S.C. § 2107(a); Fed. R. App. P. 4(a)(1)(A). For an inmate

confined in an institution, “the notice is timely if it is deposited in the

institution’s internal mail system on or before the last day for filing.” Fed. R.

App. P. 4(c)(1). Under this rule, an inmate may demonstrate a timely filing

through “a declaration in compliance with 28 U.S.C. § 1746 or by a notarized

statement, either of which must set forth the date of deposit and state that first-

class postage has been prepaid.” Id.

In this action, the district court entered judgment on Tuesday, December

30, 2008. Pursuant to Federal Rule of Appellate Procedure 26(a), the notice of

appeal was due on Thursday, January 29, 2009, thirty days from the entry of

judgment. Because Mr. Portley-El was an inmate confined in an institution, he

had to deposit a notice of appeal in the institution’s internal mail system on or

before that date. See Fed. R. App. P. 4(c)(1). Mr. Portley-El neglected to file a

notice of appeal until July 24, 2009. 6 Thus, the notice of appeal was untimely.

6
Mr. Portley-El failed to avail himself successfully of the “prison
mailbox rule.” Although Mr. Portley-El attached a certificate of service to the
notice of appeal, he neglected to certify the filing “as true under penalty of
perjury” as required by 28 U.S.C. § 1746. See Price v. Philpot, 420 F.3d 1158,
1165 n.6, 1165–66 (10th Cir. 2005). Mr. Portley-El also did not file a notarized
statement. Thus, even though Mr. Portley-El dated the notice of appeal July 20,
2009, and dated the certificate of service July 22, 2009, the actual filing date was
July 24, 2009, which is the date the district court received the notice of appeal.
See United States v. Smith, 182 F.3d 733, 734 n.1 (10th Cir. 1999) (declining to
give prisoner benefit of mailbox rule because of prisoner’s failure to declare that
first-class postage had been prepaid); Graves v. Gen. Ins. Corp., 381 F.2d 517,
519 (10th Cir. 1967) (noting, outside of prison context, that “it is the time when
(continued...)

-6-
 The district court has limited authority to extend the time for filing a notice

of appeal. 28 U.S.C. § 2107(c); Fed. R. App. P. 4(a)(4) (motions that toll the

time to file an appeal), (a)(5) (motion for extension of time), (a)(6) (motion to

reopen the time to file an appeal). Although Mr. Portley-El clearly failed to

qualify for most of the exceptions to the filing requirement, 7 the district court

reasoned that under Federal Rule of Appellate Procedure 4(a)(6) it could properly

grant Mr. Portley-El’s request to reopen the time for filing an appeal.

“We review the district court’s determination of whether to grant a motion

for an extension of time within which to file a notice of appeal for an abuse of

discretion.” Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994). Mr.

Portley-El bears the burden of demonstrating his compliance with Federal Rule of

Appellate Procedure 4(a)(6). See Nunley v. City of Los Angeles, 52 F.3d 792, 795

(9th Cir. 1995); see also Hogan v. Holton, No. 92-1059, 1993 U.S. App. LEXIS

4195, at *6 (10th Cir. Feb. 24, 1993) (“The notice [of appeal] is untimely on its

face, and Hogan can point to nothing in the record before this court to excuse that

fact. Hogan bears the burden of compliance with the rules [specifically, Rule

4(a)(6)].”); cf. United States v. Harris, No. 09-5054, 2009 U.S. App. LEXIS

6
(...continued)
the clerk of a district court receives actual custody of the notice which establishes
the jurisdiction of the appellate court” (emphasis added)).
7
Based on the record, Mr. Portley-El neither filed a motion listed in
Rule 4(a)(4) nor requested an extension of time under Rule 4(a)(5).

-7-
19108, at *6 (10th Cir. Aug. 25, 2009) (placing burden on prisoner petitioner to

establish that he did not receive timely notice under Rule 4(a)(6)(A)). Rule

4(a)(6) provides as follows:

The district court may reopen the time to file an appeal for a
period of 14 days after the date when its order to reopen is
entered, but only if all the following conditions are satisfied:

(A) the court finds that the moving party did not receive
notice under Federal Rule of Civil Procedure 77(d) of
the entry of the judgment or order sought to be appealed
within 21 days after entry;

(B) the motion is filed within 180 days after the
judgment or order is entered or within 7 days after the
moving party receives notice under Federal Rule of Civil
Procedure 77(d) of the entry, whichever is earlier; and

(C) the court finds that no party would be prejudiced.

Fed. R. App. P. 4(a)(6) (emphasis added); 8 accord 28 U.S.C. § 2107(c).

8
During the pendency of this appeal, Federal Rule of Appellate
Procedure 4(a)(6) was amended to revise the deadline for filing a motion to
reopen. Effective December 1, 2009, Rule 4(a)(6) altered the period of time for
filing a motion to reopen from seven days to fourteen days after receiving notice
of the judgment or order. Fed. R. App. P. 4(a)(6) advisory committee’s note
(2009 amendments) (stating that “[c]hanging the period from 7 to 14 days offsets
the change in computation approach” in Federal Rule of Appellate Procedure 26).
When the Supreme Court amended the rule, it provided “[t]hat the foregoing
amendments . . . shall take effect on December 1, 2009, and shall govern in all
proceedings in appellate cases thereafter commenced and, insofar as just and
practicable, all proceedings then pending.” Order of Mar. 26, 2009, 2009 US
Order 15 (C.O. 15) (emphasis added), available at http://www.supremecourtus.
gov/orders/courtorders/frap09.pdf; see 28 U.S.C. § 2074(a) (providing that “the
Supreme Court shall not require the application of [new procedural] rule[s] to
further proceedings then pending to the extent that . . . the application of such
rules in such proceedings would not be feasible or would work injustice”). In this
(continued...)

-8-
“[N]othing within Rule 4(a)(6) indicates it is permissive or that its limitations

may be waived for equitable reasons.” Clark v. Lavallie, 204 F.3d 1038, 1040

(10th Cir. 2000). Furthermore, “[t]he essence of Rule 4(a)(6) is finality of

judgment.” Id. at 1041. “While application of that concept infrequently may

work misfortune, it is an overriding principle which demands enforcement

without distinction between counseled and uncounseled cases.” Id.

The district court erred (i.e., abused its discretion) in granting the request

to reopen the time to appeal because Mr. Portley-El failed to satisfy a condition

set forth in Rule 4(a)(6)(B). 9 In the order, the district court found that Mr.

Portley-El had satisfied Rule 4(a)(6)(B) by “fil[ing] his request to reopen the

matter within 180 days after the judgment was entered.” R. at 113. Mr. Portley-

El filed the request to reopen on June 25, 2009, which was a scant four days shy

8
(...continued)
action, the application of amended Rule 4(a)(6) would not be “just and
practicable” because: (1) the district court applied the then-current version of
Rule 4(a)(6) to determine whether the request to reopen was timely; and (2) the
amended rule would give Mr. Portley-El the unexpected benefit of more time to
file the appeal, which would alter the outcome of the jurisdictional issue to the
prejudice of the non-moving party. Thus, in reviewing the order, we apply the
prior version of Rule 4(a)(6).
9
This court need not determine whether Mr. Portley-El satisfied the
remaining conditions of Rule 4(a)(6). Because Mr. Portley-El must demonstrate
his compliance with every condition, the failure to meet any one condition
precludes the reopening of the time to file an appeal.

-9-
of the 180-day deadline. 10 Nevertheless, the district court never examined

whether Mr. Portley-El had filed this request to reopen within the prescribed

period of time after he received notice of the entry of judgment.

More to the point, Mr. Portley-El neglected to demonstrate to the district

court that his request to reopen the time to file an appeal was a timely filing, in

light of Rule 4(a)(6)(B)’s application to the lesser of 180 days after the entry of

judgment or seven days after the moving party receives notice of such entry. As

an initial matter, Mr. Portley-El acknowledged that the district court mailed him a

copy of the judgment on June 4, 2009, and suggests that he received it sometime

thereafter. The judgment was not returned to the district court as undeliverable,

which supports a reasonable inference that Mr. Portley-El received the judgment.

See Ogden, 32 F.3d at 455 (finding no abuse of discretion when district court

inferred receipt of order when “court records revealed that a copy of the order

dismissing” petitioner’s case had been sent to him and “never returned as

undeliverable”). In the request to reopen, however, Mr. Portley-El provided no

indication of when he received such notice or that he filed the request within the

prescribed period of time. In sum, Mr. Portley-El failed to carry his burden of

proving that he satisfied the requirements of Rule 4(a)(6)(B).

Furthermore, on appeal, Mr. Portley-El effectively conceded that the

10
The 180-day period was set to expire on Sunday, June 28, 2009.
Pursuant to Federal Rule of Appellate Procedure 26, however, the deadline would
in actuality have been the next business day, Monday, June 29, 2009.

-10-
request to reopen was untimely. In Petitioner-Appellant’s Memorandum Brief,

Mr. Portley-El admitted that he received copies of the Recommendation, the order

adopting and affirming the magistrate judge’s recommendation, and the judgment

on June 9, 2009. Based on this date of receipt, the prior version of Rule

4(a)(6)(B), which is applicable here, indicates that the filing deadline was June

22, 2009. 11 Because this date precedes the expiration of the 180-day deadline on

11
Under the prior version of Rule 4(a)(6), the request to reopen
nominally was due on Thursday, June 18, 2009, seven business days after Mr.
Portley-El admittedly received notice of the entry of judgment. Pursuant to the
application of Federal Rule of Appellate Procedure 26(a) and (c), however, the
ultimate due date for Mr. Portley-El’s request to reopen was Monday, June 22,
2009. See, e.g., Fed. R. App. P. 26 advisory committee’s note (1996 amendment)
(“Providing that the extension is three calendar days means that if a period would
otherwise end on Thursday but the three-day extension applies, the paper must be
filed on Monday. Friday, Saturday, and Sunday are the extension days. Because
the last day of the period as extended is Sunday, the paper must be filed the next
day, Monday.”). In particular, Rule 26(c) provides that “[w]hen a party is
required or permitted to act within a prescribed period after a paper is served on
that party, 3 calendar days are added to the prescribed period” if, inter alia, the
service is effected by mail. See generally 16AA Charles Alan Wright, Arthur R.
Miller, Edward H. Cooper & Catherine T. Struve, Federal Practice and
Procedure § 3972.1, at 183 (4th ed. 2008) (discussing Rule 26(c) and noting that
“[f]rom 1968 until 1996 the extra three days had been allowed only if service was
made by mail”). As noted, the district court served Mr. Portley-El with the
judgment by mail, and he acknowledges receiving service of it on June 9, 2009.
Given that under Rule 4(a)(6)(B) the seven-day prescribed period for responding
was measured from the date of receipt of notice of the judgment through
service—rather than from the date of entry of the judgment itself, then the
ultimate due date for Mr. Portley-El to file his request to reopen was extended
under Rule 26(c) by three calendar days to June 22, 2009. Cf. Sofarelli Assocs.,
Inc. v. United States, 716 F.2d 1395, 1396 (Fed. Cir. 1983) (“Rule 26(c),
however, has no application to the 60-day period specified in Rule 4(a)(1), as the
latter rule states that the appeal time starts from the entry of the judgment, not
from service of the notice of judgment.” (emphasis added)).

-11-
June 29, 2009, it is the date with which Mr. Portley-El had to comply under Rule

4(a)(6)(B). Thus, the request to reopen was untimely because it was not filed

with the district court until June 25, 2009. 12 We therefore do not have jurisdiction

over Mr. Portley-El’s appeal and, more specifically, lack jurisdiction to reach the

merits of Mr. Portley-El’s request for a COA.

CONCLUSION

For the foregoing reasons, we REVERSE the district court’s order granting

Mr. Portley-El’s request to reopen the time to file an appeal and DISMISS this

matter. We GRANT Mr. Portley-El’s motion to proceed in forma pauperis.

ENTERED FOR THE COURT

Jerome A. Holmes
Circuit Judge

12
Mr. Portley-El does not benefit from the prisoner mailbox rule in this
calculation, inter alia, because: (1) he failed to file a declaration in compliance
with 28 U.S.C. § 1746 or a notarized statement; and (2) the request to reopen
would still be untimely because it was mailed on June 24, 2009, two days after
the deadline.

-12-