953 F.2d 1392
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Alvin PARKER, Petitioner-Appellant,
v.
ATTORNEY GENERAL, STATE OF OKLAHOMA; and Stephen W. Kaiser,
Respondents-Appellees.
No. 91-6256.
United States Court of Appeals, Tenth Circuit.
Jan. 30, 1992.
Before McKAY, Chief Judge, and SEYMOUR and EBEL, Circuit Judges.
ORDER AND JUDGMENT*
McKAY, Chief Judge.
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.
This matter is before the court on petitioner's application for a certificate of probable cause. We issue a certificate pursuant to 28 U.S.C. § 2253 and proceed to the merits of the case. See Barefoot v. Estelle, 463 U.S. 880 (1983).
Alvin Parker, a state prisoner, filed a Motion to Vacate Judgment Pursuant to Writ of Error Coram Nobis on April 8, 1991, which was denied by a District Court Order on April 23, 1991. He then filed a Motion for Extension of Time in Which to File Notice of Appeal from that Order, complaining that he did not learn immediately of the district court's judgment. See In re Cosmopolitan Aviation Corp., 763 F.2d 507, 514-15 (2d Cir.1985) (excusable neglect when party acting in good faith failed to hear that judgment had been entered). The district court denied this motion on July 9, 1991. Mr. Parker appeals the latter denial.
After thorough review of the record and pleadings, we hold that Mr. Parker's motion of April 8, 1991, the denial of which he seeks extra time to appeal, was a second attack on a judgment previously affirmed by this court. As such, the pleading is frivolous, and the district court properly denied Mr. Parker extra time to pursue it. We do not think the district court abused its discretion in denying a motion for extra time to file a frivolous appeal.
Mr. Parker also complains about a delay between the date he submitted the notice of appeal and the date the clerk actually filed it. Our affirmance of the district court's denial of an extension of time renders this issue moot. The notice of appeal would not have been timely even without the delay.
We AFFIRM the District Court's decision to deny the motion for an extension of time for the reasons stated by that court in its Orders of April 23 and July 9, 1991. The mandate shall issue forthwith.
This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3
