Augustus v. Williams

23 F. App'x 981

Opinion

ORDER AND JUDGMENT

Footnotes

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McKAY, Circuit Judge.

After examining the briefs and the 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)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

This habeas corpus action is from a state conviction in which Petitioner claims a denial of his right to speedy trial and error in admission of certain evidence. The trial court on de novo review adopted the recommendation of the magistrate judge and denied a certificate of appealability. Petitioner has renewed his request for a certificate of appealability with this court.

This appeal was challenged because it appeared from the preliminary record that the notice of appeal was untimely. The judgment denying Petitioner’s § 2254 petition was entered on March 16, 2001. The deadline for filing the appeal was April 16, 2001. The district court docketed the notice of appeal as being filed on April 24, 2001. However, the certificate of service for the notice of appeal is dated April 2, 2001, and Petitioner claims that he gave the notice of appeal to prison authorities to mail on April 2, 2001. A pro se prisoner’s notice of appeal is deemed filed when it is given to prison officials for forwarding to the district court. See Fed. R.App. P. 4(c); Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988). Therefore, we find that we have jurisdiction in this case.

We have reviewed the brief on appeal, the record so far as it is relevant, and the magistrate judge’s recommendation which the trial court adopted. For the reasons fully set forth in the magistrate judge’s recommendation, we conclude that this appeal does not satisfy our oft stated requirements for the issuance of a certificate of appealability. See Slack v. McDaniel, 529 U.S. 473, 474, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Petitioner has not made a substantial showing of a denial of a federal right. He has raised no arguments which require further proceedings or that are debatable among jurists of reason. See id.

We DENY Petitioner’s request for a certificate of appealability and DISMISS the appeal.

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.