ROBERT H. DIXON, Petitioner-Appellant,
STEVE HARTLEY, Warden; THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents-Appellees.
(D. Colorado) (D.C. No. 1:13-CV-02174-MSK)
Before HARTZ, McKAY, and MATHESON, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Harris L Hartz Circuit Judge
0 Pro se state prisoner Robert Dixon requests a certificate of appealability (COA) after the federal district court denied his application for relief under 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A) (requiring COA to appeal denial of relief under § 2254). Because there is no room for debate over the district court's ruling, we deny a COA and dismiss the appeal.
Mr. Dixon was convicted in 2007 of first-degree sexual assault in Denver County District Court, adjudicated a habitual offender, and sentenced to 48 years in prison. He unsuccessfully pursued a direct appeal and postconviction relief. On January 24, 2014, he filed an amended application under § 2254 in United States District Court for the District Court of Colorado. On April 14 the district court dismissed almost all Mr. Dixon's claims as procedurally barred. See Dixon v. Hartley, No. 13-cv-02174-MSK, 2014 WL 1466610, at *13 (D. Colo. Apr. 14, 2014). On August 28 the district court denied Mr. Dixon's remaining claims on the merits and declined to issue a COA. See Dixon, 2014 WL 4265832, at *5–10.
We first address the timeliness of Mr. Dixon's notice of appeal. A notice of appeal in a civil case typically "must be filed with the district clerk within 30 days after entry of the judgment or order appealed from." Fed. R. App. P. 4(a)(1)(A). Here, the district court entered final judgment on August 28, but Mr. Dixon's notice of appeal was not received by the district clerk until Tuesday, September 30, one day late.
Under normal circumstances this would end the appeal. But prisoners may benefit from what our court has referred to as the "prison mailbox rule." Price v. Philpot, 420 F.3d 1158, 1163 (10th Cir. 2005). It provides as follows:
If an inmate confined in an institution files a notice of appeal in either a civil or a criminal case, the notice is timely if it is deposited in the institution's internal mail system on or before the last day for filing. If an institution has a system designed for legal mail, the inmate must use that system to receive the benefit of this rule. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or by 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) (emphasis added). Therefore, as we have said:
[A]n inmate must establish timely filing under the mailbox rule by either (1) alleging and proving that he or she made timely use of the prison's legal mail system if a satisfactory system is available, or (2) if a legal system is not available, then by timely use of the prison's regular mail system in combination with a notarized statement or a declaration under penalty of perjury of the date on which the documents were given to prison authorities and attesting that postage was prepaid.
Price, 420 F.3d at 1166. Mr. Dixon has not submitted a notarized statement or a declaration, nor has he attested that postage was prepaid. Therefore he must prevail, if at all, by alleging ...