FILED
United States Court of Appeals
Tenth Circuit
April 26, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
KEITH ELMO DAVIS,
Petitioner-Appellant,
v. No. 10-7093
JUSTIN JONES, Director, Oklahoma (D.C. No. 6:08-CV-00235-JHP-KEW)
Department of Corrections, (E.D. Okla.)
Respondent-Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before BRISCOE, Chief Judge, ANDERSON and MURPHY, Circuit Judges.
Keith Davis, a pro se prisoner incarcerated at the Lawton Correctional Facility
(LCF) in Oklahoma, seeks a certificate of appealability (COA) in order to challenge the
district court’s denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus.
Although Davis has not filed a formal application for a COA, his notice of appeal is
treated as a request for a COA. Fed. R. App. P. 22(b)(2). Because Davis’s notice of
appeal and request for a COA were not timely filed, we lack jurisdiction and we dismiss
this matter.
*
This order is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel.
I
In February 2005, Davis was convicted in Oklahoma state court of (1) forcible
sodomy in violation of 21 O.S. Supp. 2002, § 888 and (2) lewd or indecent proposal to a
child under sixteen, in violation of 21 O.S. Supp. 2002, § 1123(A)(1). Davis was
sentenced to consecutive sentences of twenty and fifteen years’ imprisonment for the two
convictions. Davis appealed his convictions, arguing that the state trial court violated his
Fifth Amendment double jeopardy rights when it granted his motion for a mistrial, but
permitted the prosecution to bring the same charges against him under an amended
information. ROA Vol. 1, at 98. The Oklahoma Court of Criminal Appeals affirmed the
trial court in December 2006.
In January 2007, Davis filed a motion for post-conviction relief, arguing that he
received ineffective assistance from his trial counsel and that his sentences violated his
Fifth Amendment rights. The trial court denied Davis’s motion in May 2007. In
December 2007, Davis filed an “Amended/Supplemental Application for Post Conviction
Relief.” The trial court treated the motion as a second application for post-conviction
relief and denied the motion in January 2008. Davis then appealed to the Oklahoma
Court of Criminal Appeals, which affirmed the trial court in April 2008. In June 2008,
Davis filed his § 2254 habeas petition in federal district court.1 The district court denied
1
Although we ultimately lack jurisdiction because Davis did not timely file his
notice of appeal, we also note that his § 2254 petition may also have been untimely.
(continued...)
2
the petition on the merits and entered judgment on October 20, 2010. Davis filed a notice
of appeal with this court on November 22, 2010.
II
“A timely notice of appeal is both mandatory and jurisdictional.” Allender v.
Raytheon Aircraft Co., 439 F.3d 1236, 1239 (10th Cir. 2006) (quotation omitted). An
untimely notice of appeal deprives this court of jurisdiction to consider the appeal.
Bowles v. Russell, 551 U.S. 205, 213-15 (2007). A timely notice of appeal must be filed
within thirty days after entry of final judgment. Fed. R. App. P. 4(a)(1)(A). Pro se
parties are required to comply with this requirement. Kay v. Bemis, 500 F.3d 1214, 1218
(10th Cir. 2007).
Because Davis’s notice of appeal was filed more than thirty days from the date the
district court entered final judgment, we ordered Davis to show cause as to why his
appeal should not be dismissed for lack of jurisdiction. In response to our order, Davis
1
(...continued)
Under 28 U.S.C. § 2244(d)(1), a state inmate has one year from the date his or her
judgment of conviction becomes final to file a § 2254 petition for habeas relief. Although
the statute of limitations is tolled while a defendant seeks post-conviction relief in state
court, that tolling period only applies to “properly filed application[s]” for post-conviction
relief. 28 U.S.C. § 2244(d)(2). A motion for post-conviction relief is properly filed under
§ 2244(d)(2) when it complies with state filing requirements. Habteselassie v. Novak,
209 F.3d 1208, 1210 (10th Cir. 2000). It appears that Davis’s “Amended” motion for
post-conviction relief was not properly filed because Davis asserted claims in the
amended motion that he could have brought in his initial motion. See Smith v. State, 878
P.2d 375, 377 (Ok. Ct. Crim. App. 1994) (A defendant may only bring an amended
motion for post-conviction relief if there is “sufficient reason” for his failure to raise the
claims at issue in the initial motion for post-conviction relief.). Since Davis’s amended
motion likely did not toll the statute of limitations, his § 2254 petition appears to be
untimely.
3
argued that his notice of appeal was timely under the mailbox rule. The mailbox rule
states that an inmate who places a habeas petition “in the prison’s internal mail system
will be treated as having ‘filed’ [the petition] on the date it is given to prison authorities
for mailing to the court.” Price v. Philpot, 420 F.3d 1158, 1165 (10th Cir. 2005) (citing
Houston v. Lack, 487 U.S. 266, 276 (1988)). “However, the inmate must attest that such
a timely filing was made and has the burden of proof on this issue.” Id. (citing United
States v. Ceballos-Martinez, 387 F.3d 1140, 1143 (10th Cir. 2004)). In order to establish
timely filing, an inmate must either (1) prove that he made timely use of the prison’s legal
mail system if a satisfactory system is available; or (2) if a legal mail system is not
available, prove timely use of the prison’s regular mail system by submitting a notarized
statement or a declaration under penalty of perjury indicating the date on which the
document was given to prison officials for mailing. Id. (citing Ceballos-Martinez, 387
F.3d at 1144-45).
Davis argues that his notice of appeal was timely because he “delivered the notice .
. . to prison officials for mailing by placing it in the out-going prison legal mailbox” on
November 18, 2010. Aplt. Ans. to Show Cause Order at 1. In support of this assertion,
Davis submits a sign-in log from the LCF law library indicating that on November 18 he
signed into the library at 3:00 p.m. and signed out at 5:10 p.m. Id. at 5. Davis claims this
sign-in sheet indicates that he mailed the notice of appeal through the prison legal mailing
system on November 18 because the prison legal mailbox is located inside the law
library.
4
We conclude that Davis does not qualify for the mailbox rule because the fact that
he was in the law library on November 18 does not prove that he used the prison legal
mailing system that day to mail his notice of appeal. Inmates are required to use the
prison legal mailing system when available because that system’s procedures, “by which
mail is logged in at the time and date it is received, provide a ‘bright line rule’ for
determining the date of a pro se prisoner’s ‘filing.’” United States v. Gray, 182 F.3d 762,
765 (10th Cir. 1999) (quoting United States v. Leonard, 182 F.3d 762, 765 (10th Cir.
1999)). Because Davis has not provided documentation indicating the date and time he
sent the notice of appeal through the prison legal mailing system, he has not proven that
he mailed the notice in accordance with the requirements of the mailbox rule. Thus, left
with nothing more than Davis’s assertion that he mailed the notice on November 18, we
conclude that Davis has not carried his burden of showing proper usage of the prison
legal mailing system.
Moreover, even if LCF does not have a legal mailing system (which Davis claims
it does), Davis would still fail to qualify for the mailbox rule. This is because his notice
of appeal does not contain a notarized statement or a declaration under penalty of perjury
indicating that he gave the notice to prison officials for mailing on November 18. The
notice of appeal contains only Davis’s signature, which is insufficient under the mailbox
rule. Thus, even if Davis could have used the regular mail system to send the notice of
appeal, he has still failed to comply with the mailbox rule under the standard set forth in
Price v. Philpot, 420 F.3d at 1165. Because Davis has failed comply with this rule, we
5
must treat his notice of appeal as filed on November 22, 2010. The notice of appeal, and
the COA implicitly sought by its filing, are untimely under Rule 4(a) of the Federal Rules
of Appellate Procedure.
III
Davis’s request for a COA is DENIED as untimely, and the matter is
DISMISSED.
Entered for the Court
Mary Beck Briscoe
Chief Judge
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