FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT December 10, 2014
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff – Appellee, No. 14-6077
(D.C. No. 5:02-CR-00003-F-1)
v. (W.D. Okla.)
MARK D. RICE,
Defendant – Appellant.
ORDER GRANTING PANEL REHEARING*
Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges.
Mark Rice, a federal prisoner proceeding pro se, seeks rehearing by the panel of its
order dated October 10, 2014, denying a certificate of appealability. We GRANT
rehearing by the panel for the purpose of clarifying a jurisdictional issue. The panel’s
October 10, 2014, order is VACATED and replaced with the order issued herewith.
Rice’s petition for rehearing has been circulated to the full court and no active
judge has called for a poll or voted for rehearing en banc. Consequently, his suggestion
* This order is not binding precedent, except under the doctrines of law of the case
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.
for rehearing en banc is DENIED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 10, 2014
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff – Appellee, No. 14-6077
(D.C. Nos. 5:02-CR-00003-F-1)
v. (W.D. Okla.)
MARK D. RICE,
Defendant – Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges.
Mark Rice, a federal prisoner proceeding pro se, requests a certificate of
appealability (“COA”) to appeal several orders of the district court. We deny a COA and
dismiss the appeal.1
* This order is not binding precedent, except under the doctrines of law of the case
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.
1
On August 25, 2014, Rice filed a motion with this court titled “Motion Pursuant
to Fed. R. Civ. P. Rule 15 with Formal Complaint of Professional Misconduct.” We
construe this motion as a request to amend and clarify Rice’s brief, and so GRANT it.
I
The substantial procedural history preceding this request for a COA begins with
Rice’s motion to suppress evidence of child pornography found in his home, including
pornography that Rice produced. After the district court denied that motion, Rice entered
a conditional guilty plea preserving his right to appeal the denial of his motion to
suppress. This court affirmed in United States v. Rice, 358 F.3d 1268 (10th Cir. 2004).
The Supreme Court reversed and remanded for resentencing pursuant to United States v.
Booker, 543 U.S. 220 (2005), but did not disturb the non-sentencing portions of our
decision. Rice v. United States, 543 U.S. 1103 (2005); United States v. Rice, 405 F.3d
1108 (10th Cir. 2005).
On remand, Rice moved to withdraw his guilty plea, claiming that he was actually
innocent, that his plea was not entered knowingly and voluntarily, and that his counsel
was ineffective. Rice specifically claimed that his counsel failed to investigate emails
and other computer data held by the government that might have undermined the
credibility of a witness or vitiated probable cause for the original search of Rice’s house.
Following an evidentiary hearing, the district court denied Rice’s motion to withdraw his
guilty plea, a decision we upheld on appeal. United States v. Rice, 310 F. App’x 244
(10th Cir. 2009) (unpublished).
Rice then filed a motion to vacate under 28 U.S.C. § 2255, alleging ineffective
assistance of counsel and government misconduct. His motion repeated the main
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contention underlying his motion to withdraw his guilty plea: that the emails and
computer data were withheld by the government, insufficiently investigated by his
attorney, and would have supported a motion to suppress. The district court denied this
motion and we denied Rice’s request for a COA. United States v. Rice, 450 F. App’x
746 (10th Cir. 2011) (unpublished).
Rice then filed a motion in the district court, styled as a Rule 60 motion,
challenging the denial of his § 2255 motion. The district court construed several claims
raised in this motion as unauthorized second or successive habeas claims and dismissed
them for lack of jurisdiction. However, Rice did present three claims that the district
court treated as “true” Rule 60 claims. See In re Pickard, 681 F.3d 1201, 1204 (10th Cir.
2012) (discussing the distinction between a Rule 60 claim and a second or successive
§ 2255 motion). On November 25, 2013, the district court denied Rice’s true Rule 60
claims on their merits.
Rice filed a motion requesting leave to file a Rule 52(b)/59(e) motion on
December 30, 2013. Attached to that motion was the proffered Rule 52(b)/59(e) motion,
which sought reconsideration of the district court’s denial of Rice’s Rule 60(b) motion.
The Rule 52(b)/59(e) motion included a certification, under penalty of perjury, that it was
delivered to prison officials on December 23, 2013. On January 6, 2014, the district
court granted the motion for leave to file, and directed the clerk to file the Rule
52(b)/59(e) motion. The district court denied the Rule 52(b)/59(e) motion on February
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10, 2014, whereupon Rice filed a second Rule 60(b) motion, challenging the denial of his
request to file an untimely reply for his Rule 52(b)/59(e) motion. The district court
denied Rice’s second 60(b) motion on March 27, 2014.
On August 4, 2014, Rice filed the present request for a COA. He seeks to appeal
the November 25, 2013 Order; the February 10, 2014 Order; and the March 27, 2014
Order.
II
A
Because the orders being appealed relate to Rice’s § 2255 motion, they are civil in
character. See United States v. Kelly, 269 F.2d 448, 451 (10th Cir. 1959). A notice of
appeal in a civil case must be filed within 60 days if the United States is a party. Fed. R.
App. P. 4(a)(1)(B). “[T]he timely filing of a notice of appeal in a civil case is a
jurisdictional requirement.” Bowles v. Russell, 551 U.S. 205, 214 (2007).
Rice filed his notice of appeal in April 2014, more than 60 days after the
November 25, 2013 Order was entered. However, a timely Rule 59(e) motion tolls the
time to appeal. Fed. R. App. P. 4(a)(4)(A)(iv). A Rule 59(e) motion generally “must be
filed no later than 28 days after the entry of the judgment.” Fed. R. Civ. P. 59(e). Our
court has held that the timeliness of a Rule 59(e) motion “question[ing] the correctness of
the dismissal of the Rule 60(b) motion” is measured from the date the district court
denies the Rule 60(b) motion and, if timely as measured from that date, “toll[s] the period
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to appeal the judgment denying the Rule 60(b) motion.” Venable v. Haislip, 721 F.2d
297, 299 (10th Cir. 1983).
Rice had until December 23, 2013, to challenge the district court’s November 25,
2013 Order. The district court received his Rule 52(b)/59(e) motion on December 30,
2013 as an attachment to a motion that sought permission to file the Rule 52(b)/59(e)
motion. Motions for leave to file a motion for a new trial that attach a proposed motion
for a new trial are themselves “to be regarded as a motion for new trial.” Metro. Life Ins.
Co. v. Banion, 106 F.2d 561, 568 (10th Cir. 1939). And because the Rule 52(b)/59(e)
motion contained a proper certification that it was delivered to prison staff on December
23, 2013, we will treat it as timely filed. See Price v. Philpot, 420 F.3d 1158, 1166 (10th
Cir. 2005) (describing prison mailbox rule). Accordingly, Rice’s time to appeal the
denial of his Rule 60(b) motion restarted when the district court denied, on February 10,
2014, the Rule 52(b)/59(e) motion that was originally delivered to prison staff on
December 23, 2013. As measured from February 10, 2014, his appeal of the November
25, 2013 order was timely.2
2
The envelope containing his notice of appeal is postmarked April 9, 2014, and
that envelope is marked legal mail. Because the postmark is independent confirmation of
the date of mailing, 58 days after entry of the relevant order, Rice satisfies the prison
mailbox rule even though his notice of appeal was actually filed on April 14, 2014, 63
days after the entry of the February 10, 2014 Order. See id. at 1165.
Continued . . .
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The district court denied several claims advanced in Rice’s Rule 60(b) motion and
dismissed the remainder for lack of jurisdiction, concluding that the latter were not “true”
Rule 60(b) issues, but unauthorized second or successive claims. To challenge the denial
of a true Rule 60(b) motion, Rice must obtain a COA. See Spitznas v. Boone, 464 F.3d
1213, 1217-18 (10th Cir. 2006).3 We will issue a COA “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c). To
make such a showing, Rice must demonstrate that “reasonable jurists could debate
whether (or, for that matter, agree that) the petition 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, 475 (2000) (quotations omitted).
Relief under Rule 60(b) is committed to the sound discretion of the district court
and is warranted only under exceptional circumstances. See Butler v. Kempthorne, 532
F.3d 1108, 1110 (10th Cir. 2008). Rice argues that the district court failed to address
certain issues when it denied his initial habeas petition. See Fed. R. Civ. P. 60(b)(1)
(permitting relief for “inadvertence” or “neglect”). As the district court explicitly noted
in its order denying habeas relief, however, it discussed in detail only the “core” claims
3
We do not construe Rice’s application for a COA as requesting permission to file
a second or successive habeas petition as to the claims dismissed by the district court.
See id. at 1219 n.8.
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Rice asserted given his voluminous filings, and held that relief was not warranted on any
ground. Rice also asserts his claims are based on newly discovered evidence. See Fed.
R. Civ. P. 60(b)(2). But he does not establish that the “new” evidence “with reasonable
diligence, could not have been discovered in time to move for a new trial under Rule
59(b).” Id. Finally, Rice claims fraud on the court. See Fed. R. Civ. P. 60(b)(3).
However, as the district court correctly held, his allegations do not undermine the validity
of the original § 2255 disposition but largely relate to previous proceedings.
B
Rice’s notice of appeal as to the February 10, 2014 Order was timely. In his
opening brief, Rice asks this court if a COA is required to appeal from that order. We
answer in the affirmative. In Spitznas, we held that it would be “illogical” if a COA were
“required to appeal from a habeas judgment, but not from the district court’s order
denying Rule 60(b) relief from such a judgment.” 464 F.3d at 1218. That conclusion
applies with equal force to Rule 52(b) and 59(e) motions seeking relief from a habeas
judgment. See Jackson v. Albany Appeal Bureau Unit, 442 F.3d 51, 54 (2d Cir. 2006)
(requiring a COA to appeal from the denial of a Rule 59(e) motion relating to a habeas
judgment).
Grounds warranting reconsideration, as requested in Rice’s Rule 52(b)/59(e)
motion, “include (1) an intervening change in the controlling law, (2) new evidence
previously unavailable, and (3) the need to correct clear error or prevent manifest
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injustice.” Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). Rice
identifies no intervening change in controlling law. The only new evidence he proffers
was considered in the 2007 evidentiary hearing on his motion to withdraw his guilty plea.
And although Rice claims clear error and manifest injustice, the district court has already
addressed the arguments he advances. To the extent that Rice advances genuinely new
arguments, he does not show that the district court’s resolution of them denied a
constitutional right. See Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir.
1991) (affirming, on appeal, the denial of a Rule 59(e) motion that repeated issues the
court had already addressed). Rice has thus not made a substantial showing that the
district court’s refusal to amend resulted in a violation of a constitutional right, nor that
reasonable jurists could debate that proposition.
C
Rice’s notice of appeal as to the March 27, 2014 Order was timely. However,
Rice fails to explain how the district court erred in refusing to permit him to file an
untimely reply brief, or what specific constitutional right that district court order violated.
We therefore also deny Rice’s request for a COA to appeal the March 27, 2014 Order.
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III
For the foregoing reasons, we DENY a COA and DISMISS the appeal.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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