Appellate Case: 24-1247 Document: 25-1 Date Filed: 11/27/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 27, 2024 _________________________________ Christopher M. Wolpert Clerk of Court GREGORY D. COSBY, a/k/a Gregory D. Crosby,
Petitioner - Appellant,
v. No. 24-1247 (D.C. No. 1:23-CV-01274-GPG) A. CIOLLI, Warden; M. BANUELOS, (D. Colo.) DHO Officer; J. POTTER, Correctional Officer; K. MANDABON MARTINEZ; D. MCMICHAEL,
Respondents - Appellees. _________________________________
ORDER AND JUDGMENT * _________________________________
Before HARTZ, BALDOCK, and MORITZ, Circuit Judges. _________________________________
Gregory Cosby, a federal prisoner proceeding pro se, appeals the district
court’s order denying his motion to reopen the time to appeal its order denying
Cosby’s 28 U.S.C. § 2241 petition. 1 Discerning no abuse of discretion in the district
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). 1 We liberally construe Cosby’s pro se filings, “but we do not act as his advocate.” United States v. Griffith, 928 F.3d 855, 864 n.1 (10th Cir. 2019). Appellate Case: 24-1247 Document: 25-1 Date Filed: 11/27/2024 Page: 2
court’s determination that Cosby failed to make the required showing that he never
received notice of the underlying § 2241 order, we affirm.
The district court denied Cosby’s § 2241 petition—which challenged a prison
disciplinary hearing that resulted in the loss of good-time credits—on February 5,
2024. Cosby sought to appeal, but his notice of appeal was late: although it was due
on April 5, he signed it on April 16, and it was filed on April 22. See Fed. R. App. P.
4(a)(1)(B). We ordered Cosby to show cause why his appeal should not be dismissed
for lack of jurisdiction and ultimately dismissed the appeal on that basis. See Cosby
v. Ciolli, No. 24-1167, slip op. at 3–4 (10th Cir. May 13, 2024).
Cosby then filed a motion in the district court seeking to reopen the time to
appeal under Federal Rule of Appellate Procedure 4(a)(6), asserting that he had never
received the underlying § 2241 order. 2 This rule permits a district court to reopen the
time to file an appeal only if three “conditions are satisfied.” Fed. R. App. P. 4(a)(6);
see also 28 U.S.C. § 2107(c) (setting forth same three conditions); Clark v. Lavallie,
204 F.3d 1038, 1040 (10th Cir. 2000) (“[N]othing within Rule 4(a)(6) indicates it is
permissive or that its limitations may be waived for equitable reasons.”). The first
condition—and the only one at issue here—requires the moving party to show that
they “did not receive notice under Federal Rule of Civil Procedure 77(d) of the entry
2 Cosby’s motion also discussed Rule 4(a)(5), which permits a district court to extend the time to file a notice of appeal for good cause or excusable neglect. But that provision requires a party to seek extension within 30 days after the time to appeal has expired, and Cosby’s May 20 motion was more than 30 days after the April 5 expiration of the appeal time. See Fed. R. App. P. 4(a)(5)(A)(i). So Rule 4(a)(5) did not apply. 2 Appellate Case: 24-1247 Document: 25-1 Date Filed: 11/27/2024 Page: 3
of the judgment or order sought to be appealed within 21 days after entry.” Fed. R.
App. P. 4(a)(6)(A); see also Shepard v. Rangel, 658 F. App’x 365, 366 (10th Cir.
2016) (“[T]he movant bears the burden of demonstrating that he did not receive
timely notice of the judgment he seeks to appeal.”). 3 In turn, Rule 77(d) directs the
clerk to “serve notice of the entry, as provided in [Federal] Rule [of Civil Procedure]
5(b), on each party who is not in default for failing to appear” and to “record the
service on the docket.” And Rule 5(b) explains that service can be made by “mailing
it to the person’s last known address—in which event service is complete upon
mailing.”
The district court concluded here that Cosby failed to establish he did not
receive the § 2241 order. Instead, it explained, its docket reflected that the clerk
mailed the order to Cosby’s current address in compliance with Rules 77(d) and 5(b)
and that no mail had been returned as undeliverable. The district court therefore
denied Cosby’s motion to reopen the time to appeal.
Cosby appeals. 4 Our review is for abuse of discretion. Ogden v. San Juan
Cnty., 32 F.3d 452, 455 (10th Cir. 1994).
The heart of Cosby’s argument on appeal is his continued assertion that he
never received the underlying § 2241 order. But his unsupported assertion does not
3 We cite this and other unpublished authority for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). 4 He does not need a certificate of appealability to do so because he is a federal prisoner seeking appellate review of a final order in a proceeding under § 2241. See 28 U.S.C. § 2253(c); McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 810 n.1 (10th Cir. 1997). 3 Appellate Case: 24-1247 Document: 25-1 Date Filed: 11/27/2024 Page: 4
prevail, given the district court’s finding that the order was mailed to him and never
returned as undeliverable. Indeed, we have held that a district court does not abuse its
discretion in denying a Rule 4(a)(6) motion where “court records revealed that a copy
of the order dismissing [the] case had been sent to [the appellant] and never returned
as undeliverable.” Ogden, 32 F.3d at 455; see also Portley-El v. Milyard, 365 F.
App’x 912, 917 (10th Cir. 2010) (“The judgment was not returned to the district
court as undeliverable, which supports a reasonable inference that [the appellant]
received the judgment.”). Cosby also suggests that additional evidence might support
his assertion that he did not receive the underlying order, describing the absence of
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Appellate Case: 24-1247 Document: 25-1 Date Filed: 11/27/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 27, 2024 _________________________________ Christopher M. Wolpert Clerk of Court GREGORY D. COSBY, a/k/a Gregory D. Crosby,
Petitioner - Appellant,
v. No. 24-1247 (D.C. No. 1:23-CV-01274-GPG) A. CIOLLI, Warden; M. BANUELOS, (D. Colo.) DHO Officer; J. POTTER, Correctional Officer; K. MANDABON MARTINEZ; D. MCMICHAEL,
Respondents - Appellees. _________________________________
ORDER AND JUDGMENT * _________________________________
Before HARTZ, BALDOCK, and MORITZ, Circuit Judges. _________________________________
Gregory Cosby, a federal prisoner proceeding pro se, appeals the district
court’s order denying his motion to reopen the time to appeal its order denying
Cosby’s 28 U.S.C. § 2241 petition. 1 Discerning no abuse of discretion in the district
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in 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 order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). 1 We liberally construe Cosby’s pro se filings, “but we do not act as his advocate.” United States v. Griffith, 928 F.3d 855, 864 n.1 (10th Cir. 2019). Appellate Case: 24-1247 Document: 25-1 Date Filed: 11/27/2024 Page: 2
court’s determination that Cosby failed to make the required showing that he never
received notice of the underlying § 2241 order, we affirm.
The district court denied Cosby’s § 2241 petition—which challenged a prison
disciplinary hearing that resulted in the loss of good-time credits—on February 5,
2024. Cosby sought to appeal, but his notice of appeal was late: although it was due
on April 5, he signed it on April 16, and it was filed on April 22. See Fed. R. App. P.
4(a)(1)(B). We ordered Cosby to show cause why his appeal should not be dismissed
for lack of jurisdiction and ultimately dismissed the appeal on that basis. See Cosby
v. Ciolli, No. 24-1167, slip op. at 3–4 (10th Cir. May 13, 2024).
Cosby then filed a motion in the district court seeking to reopen the time to
appeal under Federal Rule of Appellate Procedure 4(a)(6), asserting that he had never
received the underlying § 2241 order. 2 This rule permits a district court to reopen the
time to file an appeal only if three “conditions are satisfied.” Fed. R. App. P. 4(a)(6);
see also 28 U.S.C. § 2107(c) (setting forth same three conditions); Clark v. Lavallie,
204 F.3d 1038, 1040 (10th Cir. 2000) (“[N]othing within Rule 4(a)(6) indicates it is
permissive or that its limitations may be waived for equitable reasons.”). The first
condition—and the only one at issue here—requires the moving party to show that
they “did not receive notice under Federal Rule of Civil Procedure 77(d) of the entry
2 Cosby’s motion also discussed Rule 4(a)(5), which permits a district court to extend the time to file a notice of appeal for good cause or excusable neglect. But that provision requires a party to seek extension within 30 days after the time to appeal has expired, and Cosby’s May 20 motion was more than 30 days after the April 5 expiration of the appeal time. See Fed. R. App. P. 4(a)(5)(A)(i). So Rule 4(a)(5) did not apply. 2 Appellate Case: 24-1247 Document: 25-1 Date Filed: 11/27/2024 Page: 3
of the judgment or order sought to be appealed within 21 days after entry.” Fed. R.
App. P. 4(a)(6)(A); see also Shepard v. Rangel, 658 F. App’x 365, 366 (10th Cir.
2016) (“[T]he movant bears the burden of demonstrating that he did not receive
timely notice of the judgment he seeks to appeal.”). 3 In turn, Rule 77(d) directs the
clerk to “serve notice of the entry, as provided in [Federal] Rule [of Civil Procedure]
5(b), on each party who is not in default for failing to appear” and to “record the
service on the docket.” And Rule 5(b) explains that service can be made by “mailing
it to the person’s last known address—in which event service is complete upon
mailing.”
The district court concluded here that Cosby failed to establish he did not
receive the § 2241 order. Instead, it explained, its docket reflected that the clerk
mailed the order to Cosby’s current address in compliance with Rules 77(d) and 5(b)
and that no mail had been returned as undeliverable. The district court therefore
denied Cosby’s motion to reopen the time to appeal.
Cosby appeals. 4 Our review is for abuse of discretion. Ogden v. San Juan
Cnty., 32 F.3d 452, 455 (10th Cir. 1994).
The heart of Cosby’s argument on appeal is his continued assertion that he
never received the underlying § 2241 order. But his unsupported assertion does not
3 We cite this and other unpublished authority for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). 4 He does not need a certificate of appealability to do so because he is a federal prisoner seeking appellate review of a final order in a proceeding under § 2241. See 28 U.S.C. § 2253(c); McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 810 n.1 (10th Cir. 1997). 3 Appellate Case: 24-1247 Document: 25-1 Date Filed: 11/27/2024 Page: 4
prevail, given the district court’s finding that the order was mailed to him and never
returned as undeliverable. Indeed, we have held that a district court does not abuse its
discretion in denying a Rule 4(a)(6) motion where “court records revealed that a copy
of the order dismissing [the] case had been sent to [the appellant] and never returned
as undeliverable.” Ogden, 32 F.3d at 455; see also Portley-El v. Milyard, 365 F.
App’x 912, 917 (10th Cir. 2010) (“The judgment was not returned to the district
court as undeliverable, which supports a reasonable inference that [the appellant]
received the judgment.”). Cosby also suggests that additional evidence might support
his assertion that he did not receive the underlying order, describing the absence of
his signature around the relevant dates on a log sheet that inmates sign when
receiving legal mail. Yet even overlooking that Cosby made no such argument below,
he also points to no record support for this assertion. 5 Under these circumstances, our
holding in Ogden applies equally here, and the district court did not abuse its
discretion in concluding that Cosby failed to establish he did not receive the
underlying order. 6 See 32 F.3d at 455.
5 We also fail to see the relevance of Cosby’s allegation regarding the unavailability of the prison’s library in December 2023 and January 2024, given that the district court issued the underlying § 2241 order in February 2024. 6 Cosby suggests in passing that the district court should have construed his late notice of appeal as a Rule 4(a)(5) motion to extend the time to file a notice of appeal for good cause. We decline to consider this unpreserved argument, which Cosby never raised below. See Little v. Budd Co., 955 F.3d 816, 821 (10th Cir. 2020). 4 Appellate Case: 24-1247 Document: 25-1 Date Filed: 11/27/2024 Page: 5
We affirm the district court’s order denying Cosby’s motion to reopen the time
to appeal, and we grant Cosby’s motion to proceed in forma pauperis.
Entered for the Court
Nancy L. Moritz Circuit Judge