Filed: Aug. 25, 2009
Latest Update: Feb. 21, 2020
Summary: FILED United States Court of Appeals Tenth Circuit August 25, 2009 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker Clerk of Court TENTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, No. 09-5054 v. Northern District of Oklahoma EFREM ZEMBLISH HARRIS, (D.C. No. 4:02-CR-00088-CVE-1 and 4:05-CV-00143-CVE-SAJ) Defendant-Appellant. ORDER DENYING CERTIFICATE OF APPEALABILITY * Before LUCERO, MURPHY and McCONNELL, Circuit Judges. Efrem Zemblish Harris, a federal prisoner proceeding pro se,
Summary: FILED United States Court of Appeals Tenth Circuit August 25, 2009 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker Clerk of Court TENTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, No. 09-5054 v. Northern District of Oklahoma EFREM ZEMBLISH HARRIS, (D.C. No. 4:02-CR-00088-CVE-1 and 4:05-CV-00143-CVE-SAJ) Defendant-Appellant. ORDER DENYING CERTIFICATE OF APPEALABILITY * Before LUCERO, MURPHY and McCONNELL, Circuit Judges. Efrem Zemblish Harris, a federal prisoner proceeding pro se, s..
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FILED
United States Court of Appeals
Tenth Circuit
August 25, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 09-5054
v. Northern District of Oklahoma
EFREM ZEMBLISH HARRIS, (D.C. No. 4:02-CR-00088-CVE-1 and
4:05-CV-00143-CVE-SAJ)
Defendant-Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before LUCERO, MURPHY and McCONNELL, Circuit Judges.
Efrem Zemblish Harris, a federal prisoner proceeding pro se, seeks a
certificate of appealability (COA) to appeal the district court’s denial of his
motion to reopen the time to file an appeal. Exercising jurisdiction pursuant to 28
U.S.C. §§ 1291 and 2253(c), we conclude that Mr. Harris has not made a
“substantial showing of the denial of a constitutional right.” We therefore deny
Mr. Harris’s request for COA and dismiss the appeal.
*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
Background
In 2005, Mr. Harris filed a § 2255 motion challenging his life sentence for
multiple drug offenses. After the district court denied his motion on June 14,
2006, Mr. Harris filed a timely Rule 59(e) motion to reconsider. That motion was
denied on June 28, 2006. Mr. Harris, however, contends that he never received
notice of the June 28 order until September 7, 2006, and then only after he had
inquired about its status with the court clerk. He filed an untimely appeal of the
June 28 order on September 20, 2006—twenty-three days past the sixty-day
deadline—and has been trying to overcome the timeliness bar in one way or
another ever since. [Dist. 2]
Mr. Harris has been nothing if not persistent. His first appeal, filed
September 20, 2006, challenged the district court’s denial of his § 2255 and Rule
59(e) motions; we denied that appeal as untimely because it was not filed within
60 days of entry of judgment. United States v. Harris, No. 06-5189 (10th Cir.
Feb. 26, 2007) (unpublished order). [R. 51] On March 7, 2007, he then moved for
the district court to reopen the time to file an appeal pursuant to Fed. R. App. P.
4(a)(6). [Supp. R. 92] The district court denied his motion the next day, and he
did not appeal that denial. [Supp. R. 99] Shortly thereafter, Mr. Harris filed a
motion under Fed. R. Civ. P. 60(b)(1), seeking relief from the denial of his
4(a)(6) motion to reopen his appeal due to “excusable neglect.” [Supp. R. 109]
The district court denied that motion, and we denied COA, holding that “Rule
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60(b) may not be used to circumvent the time limits of Fed. R. App. P. 4(a)(6).”
United States v. Harris, No. 07-5053 (10th Cir. Aug. 24, 2007) (unpublished
order). [Supp. R. 114.] Mr. Harris then filed a substantially similar motion asking
the district court to relieve him from the time bar under Fed. R. Civ. P. 60(b)(4),
(5), and (6); the district court again denied his motion and we again denied his
request for COA. United States v. Harris, 284 Fed. App’x 558 (10th Cir. 2008).
Undeterred, on March 30, 2009, Mr. Harris filed another motion to reopen
the time to appeal under Rule 4(a)(6). This motion repeated the arguments of the
March 2007 Rule 4(a)(6) motion, although it did characterize itself in part as a
motion to “Construe Defendant’s September 20, 2006 Late Notice as a Rule
4(a)(6) Motion Under the Federal Rules of Appellant [sic] Procedure.” United
States v. Harris, No. 02-CR-0088-CVE, 2009 WL 961535 at *1 (N.D. Okla. Apr.
7, 2009). The district court noted that Mr. Harris had “raised these same
arguments to the Court in a previous motion” in which the court had “found that
defendant had not satisfied any of the requirements of Rule 4(a)(6) and his motion
to reopen was untimely.”
Id. at *2. Mr. Harris had “presented no authority to
support his argument that he may seek leave to reopen his time to appeal two and
a half years after filing an untimely appeal,” nor had he “shown that the Court has
the authority to reopen his time to appeal after an appeal of the same issue has
been dismissed by the appellate court.”
Id. Even so, the court once again
addressed the merits of Mr. Harris’s motion and once again rejected it for two
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reasons. First, the court was not convinced that Mr. Harris had not in fact
received the order denying his Rule 59(e) motion in a timely manner, as the Court
Clerk had mailed him a copy of the opinion and order and the mail was not
returned as non-deliverable. Id. Second, even if the order was not mailed to him
until September 7, 2006, he still failed to file his notice of appeal until September
20, 2006, which exceeded the seven day window required by Rule 4(a)(6)(B).
Id.
at *2. The district court later denied COA on the issue.
Discussion
The denial of a motion for relief under 28 U.S.C. § 2255 may be appealed
only if the district court or this Court first issues a COA. 28 U.S.C. §
2253(c)(1)(B). A COA will issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To
make such a showing, a petitioner must demonstrate that “reasonable jurists could
debate whether . . . 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, 483–84 (2000) (internal quotation
marks omitted). When the district court’s denial is on procedural grounds, as it
was here, the petitioner must also show “that jurists of reason would find it
debatable whether the district court was correct in its procedural ruling.”
Id. at
484.
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We review the denial of a Rule 4(a)(6) motion for an abuse of discretion,
Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994), with particular
solicitude for the district court’s factual findings and credibility determinations.
Under the circumstances of this case, no jurist of reason would find that the
district court had abused its discretion. For one thing, the motion that Mr. Harris
has presently appealed is virtually identical to the Rule 4(a)(6) motion he filed on
March 7, 2007, which was denied. Mr. Harris might have changed the title of his
motion but the substantive argument remains the same. He never appealed that
earlier denial and the ruling is law of the case. Mr. Harris is not free perpetually
to relitigate final orders of the court, even on procedural issues.
Even if the issue were not barred by law of the case, the district court
offered two well-founded justifications to deny the extension. While it
recognized that Mr. Harris contended he had never received the June 28 order, it
also noted that the Court Clerk had mailed a copy of that order the day it was
filed and that the order was never returned as undeliverable. [2009 WL 961535 at
*2] When “court records revealed that a copy of the order . . . had been sent to
[the defendant] and never returned as undeliverable,” there is no abuse of
discretion in finding that the defendant had received timely notice.
Ogden, 32
F.3d at 455. Moreover, even if Mr. Harris had been able to show that notice was
not timely received, thereby satisfying Rule 4(a)(6)(A), he still could not show
that he satisfied Rule 4(a)(6)(B) by filing his motion for an extension within
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seven days of receiving notice. Mr. Harris himself admits he had received notice
by September 7, 2006, and yet his motion was not filed until September 20, 2006.
Recognizing that a September 20 filing date would be too late, Mr. Harris has
tried to avail himself of the “mailbox rule” of Fed. R. App. P. 4(c)(1), now
claiming that he mailed his motion from the federal prison within the seven-day
period. Alt. R. Br. 8. As he failed to provide a “declaration in compliance with
28 U.S.C. § 1746 or [] a notarized statement, either of which must set forth the
date of deposit and state that first-class postage has been prepaid,” Fed. R. App.
P. 4(c)(1), however, that rule does not apply.
While timing deadlines might at times be frustrating, they are nonetheless
necessary, and the decision to grant extensions falls within the discretion of the
district court. Cf. Duffield v. Jackson, 545 F.3d 1234, 1240 (10th Cir. 2008). Mr.
Harris has challenged that court’s refusal to grant an extension too many times
already. He must accept the decision.
Conclusion
Accordingly, we DENY Mr. Harris’ request for a COA and DISMISS this
appeal.
Entered for the Court,
Michael W. McConnell
Circuit Judge
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