White v. Dowling

• Docket Number: 23-5132
• Decision Date: 12 January 2024
• Parties: STEVE A. WHITE, Petitioner - Appellant, v. JANET DOWLING, Warden. Respondent - Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

1

STEVE A. WHITE, Petitioner - Appellant,
v.
JANET DOWLING, Warden. Respondent - Appellee.

No. 23-5132

United States Court of Appeals, Tenth Circuit

January 12, 2024

(D.C. No. 4:23-CV-00423-CVE-JFJ) (N.D. Okla.)

Before HOLMES, Chief Judge, MATHESON, and EID, Circuit Judges.

ORDER

We raise sua sponte the question of whether this court has jurisdiction to consider this appeal. See Amazon, Inc. v. Dirt Camp, Inc., 273 F.3d 1271, 1274 (10th Cir. 2001) (noting that we have an independent duty to examine our own jurisdiction). Steve A. White, an Oklahoma state prisoner proceeding pro se, appeals the district court's order and judgment dismissing his 28 U.S.C. § 2254 habeas corpus petition. Mr. White filed the notice of appeal after the filing deadline expired. We issued an order directing Mr. White to show cause why this appeal should not be dismissed for lack of appellate jurisdiction. Mr. White has filed a "Memorandum" and a "Petition" which appear to seek an "equitable exception" to the jurisdictional filing deadline. Upon consideration, we dismiss this appeal for the reasons stated below.

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The timely filing of the notice of appeal in a civil case is both mandatory and jurisdictional. See Bowles v. Russell, 551 U.S. 205, 209 (2007). Federal habeas corpus cases are civil proceedings. See Browder v. Dir., Dep't of Corr. of Ill., 434 U.S. 257, 269 (1978). In a proceeding under 28 U.S.C. § 2254, the notice of appeal must be filed within 30 days after entry of the order or judgment appealed from. 28 U.S.C. § 2107(a); Fed. R. App. P. 4(a)(1)(A); see Manco v. Werholtz, 528 F.3d 760, 762 (10th Cir. 2008) (order) (applying civil time limit to § 2254 proceeding in dismissing untimely appeal for lack of jurisdiction).

Here, the district court entered the order of dismissal and judgment on October 20, 2023. To be timely, Mr. White was required to file the notice of appeal by Monday, November 20, 2023. The notice of appeal was filed on the district court docket on December 7, 2023. Mr. White mailed his notice of appeal from his correctional facility on December 5, 2023. See Fed. R. App. P. 4(c)(1)(A)(ii) (postmark date as evidence of deposit in institution's mail system for purposes of establishing filing date). Using December 5, 2023 as the filing date, Mr. White's notice of appeal is untimely. Mr. White's filings in this court appear to seek an "equitable exception" to the jurisdictional filing deadline. However, we have no authority...