FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS October 10, 2014 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 14-6077 (D.C. No. 5:02-CR-00003-F-1) v. (W.D. Okla.)
MARK D. RICE,
Defendant - Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges.
Mark Rice, a federal prisoner proceeding pro se, requests a certificate of
appealability (“COA”) to appeal several orders of the district court. We lack jurisdiction
to review the district court’s November 25 order dismissing Rice’s Rule 60 motion
because his notice of appeal was not timely. As to the remaining orders, we exercise
* This order is not binding precedent, except under the doctrines of law of the case and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. jurisdiction under 28 U.S.C. §§ 1291 and 2253, deny Rice’s request for a COA, and
dismiss the appeal.1
I
The substantial procedural history preceding this request for a COA begins with
Rice’s motion to suppress evidence of child pornography found in his home, including
pornography that Rice produced. After the district court denied that motion, Rice entered
a conditional guilty plea preserving his right to appeal the denial of his motion to
suppress. This court affirmed in United States v. Rice, 358 F.3d 1268 (10th Cir. 2004).
The Supreme Court reversed and remanded for resentencing pursuant to United States v.
Booker, 543 U.S. 220 (2005), but did not disturb the non-sentencing portions of our
decision. Rice v. United States, 543 U.S. 1103 (2005); United States v. Rice, 405 F.3d
1108 (10th Cir. 2005).
On remand, Rice moved to withdraw his guilty plea, claiming that he was actually
innocent, that his plea was not entered knowingly and voluntarily, and that his counsel
was ineffective. Rice specifically claimed that his counsel failed to investigate emails
and other computer data held by the government that might have undermined the
1 On August 25, 2014, Rice also filed a motion with this court titled “Motion Pursuant to Fed. R. Civ. P. Rule 15 with Formal Complaint of Professional Misconduct.” We construe this motion as a request to amend and clarify Rice’s brief, and so GRANT it.
-2- credibility of a witness or vitiated probable cause for the original search of Rice’s house.
Following an evidentiary hearing, the district court denied Rice’s motion to withdraw his
guilty plea, a decision we upheld on appeal. United States v. Rice, 310 F. App’x 244
(10th Cir. 2009).
Rice then filed a motion to vacate under 28 U.S.C. § 2255, alleging ineffective
assistance of counsel and government misconduct. His motion repeated the main
contention underlying his motion to withdraw his guilty plea: that the emails and
computer data were withheld by the government, insufficiently investigated by his
attorney, and would have supported a motion to suppress. The district court denied this
motion and we denied the request for a COA. United States v. Rice, 450 F. App’x 746
(10th Cir. 2011).
Rice then filed a motion in the district court, styled as a Rule 60 motion,
challenging the denial of his § 2255 motion. The district court construed several claims
raised in this motion as unauthorized second or successive habeas claims and dismissed
them for lack of jurisdiction. However, Rice did present three claims that the district
court treated as “true” Rule 60 claims. See In re Pickard, 681 F.3d 1201, 1204 (10th Cir.)
(discussing the distinction between a Rule 60 claim and a second or successive § 2255
motion). On November 25, 2013, the district court denied Rice’s true Rule 60 claims on
their merits. Rice then filed a Rule 52/59(e) motion asking the district court to amend its
decision. The district court denied this motion on February 10, 2014. Rice filed a second -3- Rule 60(b) motion, challenging the denial of his request to file an untimely reply for his
Rule 52/59(e) motion. The district court denied Rice’s second 60(b) motion on March
27, 2014.
On August 4, 2014, Rice filed the present request for a COA. He seeks to appeal
the November 25, 2013, order; the February 10, 2014 order; and the March 27, 2014
order.
II
A
Rice’s notice of appeal was untimely with respect to the November 25, 2013
Order. Because the orders being appealed relate to Rice’s § 2255 motion, they are civil
in character. See United States v. Kelly, 269 F.2d 448, 451 (10th Cir. 1959). A notice of
appeal in a civil case must be filed within 60 days. Fed. R. App. P. 4(a)(1)(B). Rice filed
his notice of appeal in April 2014, more than 60 days after the November 25, 2013 Order
was entered. We must therefore dismiss his appeal of that order for lack of jurisdiction.
See Bowles v. Russell, 551 U.S. 205, 214 (2007) (“[T]he timely filing of a notice of
appeal in a civil case is a jurisdictional requirement.”).
B -4- Rice’s notice of appeal was timely with respect to the February 10, 2014 Order.2 In his
opening brief, Rice asks this court if a COA is required to appeal from that order. We
answer in the affirmative. In Spitznas v. Boone, 464 F.3d 1213 (10th Cir. 2006), we held
that it would be “illogical” if a COA were “required to appeal from a habeas judgment,
but not from the district court’s order denying Rule 60(b) relief from such a judgment.”
Id. at 1218. That conclusion applies with equal force to Rule 52 and 59(e) motions
seeking relief from a habeas judgment. See Jackson v. Albany Appeal Bureau Unit, 442
F.3d 51, 54 (2d Cir. 2006) (requiring a COA to appeal from the denial of a Rule 59(e)
motion relating to a habeas judgment).
We will issue a COA “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c). To make such a showing, Rice
must demonstrate that “reasonable jurists could debate whether (or, for that matter, agree
that) 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.
2 The envelope containing his notice of appeal is postmarked April 9, 2014, and that envelope is marked legal mail.
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FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS October 10, 2014 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 14-6077 (D.C. No. 5:02-CR-00003-F-1) v. (W.D. Okla.)
MARK D. RICE,
Defendant - Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges.
Mark Rice, a federal prisoner proceeding pro se, requests a certificate of
appealability (“COA”) to appeal several orders of the district court. We lack jurisdiction
to review the district court’s November 25 order dismissing Rice’s Rule 60 motion
because his notice of appeal was not timely. As to the remaining orders, we exercise
* This order is not binding precedent, except under the doctrines of law of the case and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. jurisdiction under 28 U.S.C. §§ 1291 and 2253, deny Rice’s request for a COA, and
dismiss the appeal.1
I
The substantial procedural history preceding this request for a COA begins with
Rice’s motion to suppress evidence of child pornography found in his home, including
pornography that Rice produced. After the district court denied that motion, Rice entered
a conditional guilty plea preserving his right to appeal the denial of his motion to
suppress. This court affirmed in United States v. Rice, 358 F.3d 1268 (10th Cir. 2004).
The Supreme Court reversed and remanded for resentencing pursuant to United States v.
Booker, 543 U.S. 220 (2005), but did not disturb the non-sentencing portions of our
decision. Rice v. United States, 543 U.S. 1103 (2005); United States v. Rice, 405 F.3d
1108 (10th Cir. 2005).
On remand, Rice moved to withdraw his guilty plea, claiming that he was actually
innocent, that his plea was not entered knowingly and voluntarily, and that his counsel
was ineffective. Rice specifically claimed that his counsel failed to investigate emails
and other computer data held by the government that might have undermined the
1 On August 25, 2014, Rice also filed a motion with this court titled “Motion Pursuant to Fed. R. Civ. P. Rule 15 with Formal Complaint of Professional Misconduct.” We construe this motion as a request to amend and clarify Rice’s brief, and so GRANT it.
-2- credibility of a witness or vitiated probable cause for the original search of Rice’s house.
Following an evidentiary hearing, the district court denied Rice’s motion to withdraw his
guilty plea, a decision we upheld on appeal. United States v. Rice, 310 F. App’x 244
(10th Cir. 2009).
Rice then filed a motion to vacate under 28 U.S.C. § 2255, alleging ineffective
assistance of counsel and government misconduct. His motion repeated the main
contention underlying his motion to withdraw his guilty plea: that the emails and
computer data were withheld by the government, insufficiently investigated by his
attorney, and would have supported a motion to suppress. The district court denied this
motion and we denied the request for a COA. United States v. Rice, 450 F. App’x 746
(10th Cir. 2011).
Rice then filed a motion in the district court, styled as a Rule 60 motion,
challenging the denial of his § 2255 motion. The district court construed several claims
raised in this motion as unauthorized second or successive habeas claims and dismissed
them for lack of jurisdiction. However, Rice did present three claims that the district
court treated as “true” Rule 60 claims. See In re Pickard, 681 F.3d 1201, 1204 (10th Cir.)
(discussing the distinction between a Rule 60 claim and a second or successive § 2255
motion). On November 25, 2013, the district court denied Rice’s true Rule 60 claims on
their merits. Rice then filed a Rule 52/59(e) motion asking the district court to amend its
decision. The district court denied this motion on February 10, 2014. Rice filed a second -3- Rule 60(b) motion, challenging the denial of his request to file an untimely reply for his
Rule 52/59(e) motion. The district court denied Rice’s second 60(b) motion on March
27, 2014.
On August 4, 2014, Rice filed the present request for a COA. He seeks to appeal
the November 25, 2013, order; the February 10, 2014 order; and the March 27, 2014
order.
II
A
Rice’s notice of appeal was untimely with respect to the November 25, 2013
Order. Because the orders being appealed relate to Rice’s § 2255 motion, they are civil
in character. See United States v. Kelly, 269 F.2d 448, 451 (10th Cir. 1959). A notice of
appeal in a civil case must be filed within 60 days. Fed. R. App. P. 4(a)(1)(B). Rice filed
his notice of appeal in April 2014, more than 60 days after the November 25, 2013 Order
was entered. We must therefore dismiss his appeal of that order for lack of jurisdiction.
See Bowles v. Russell, 551 U.S. 205, 214 (2007) (“[T]he timely filing of a notice of
appeal in a civil case is a jurisdictional requirement.”).
B -4- Rice’s notice of appeal was timely with respect to the February 10, 2014 Order.2 In his
opening brief, Rice asks this court if a COA is required to appeal from that order. We
answer in the affirmative. In Spitznas v. Boone, 464 F.3d 1213 (10th Cir. 2006), we held
that it would be “illogical” if a COA were “required to appeal from a habeas judgment,
but not from the district court’s order denying Rule 60(b) relief from such a judgment.”
Id. at 1218. That conclusion applies with equal force to Rule 52 and 59(e) motions
seeking relief from a habeas judgment. See Jackson v. Albany Appeal Bureau Unit, 442
F.3d 51, 54 (2d Cir. 2006) (requiring a COA to appeal from the denial of a Rule 59(e)
motion relating to a habeas judgment).
We will issue a COA “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c). To make such a showing, Rice
must demonstrate that “reasonable jurists could debate whether (or, for that matter, agree
that) 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.
2 The envelope containing his notice of appeal is postmarked April 9, 2014, and that envelope is marked legal mail. Because the postmark is independent confirmation of the date of mailing, 58 days after entry of the relevant order, Rice satisfies the prison mailbox rule even though his notice of appeal was actually filed on April 14, 2014, 63 days after the entry of the February 10, 2014 Order. See Prince v. Philpot, 420 F.3d 1158, 1165 (10th Cir. 2005).
-5- McDaniel, 529 U.S. 473, 475 (2000) (quotations omitted).
Grounds warranting reconsideration, as requested in Rice’s Rule 52/59(e) motion,
“include (1) an intervening change in the controlling law, (2) new evidence previously
unavailable, and (3) the need to correct clear error or prevent manifest injustice.”
Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). Rice identifies no
intervening change in controlling law. The only new evidence Rice proffers was
considered in the 2007 evidentiary hearing on his motion to withdraw his guilty plea.
And although Rice claims clear error and manifest injustice, the district court has already
addressed the arguments he advances. To the extent that Rice advances genuinely new
arguments, he did not show that the district court’s resolution of them denied a
constitutional right. See Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir.
1991) (affirming, on appeal, the denial of a Rule 59(e) motion that repeated issues the
court had already addressed). Rice has thus not made a substantial showing that the
district court’s refusal to amend resulted in a violation of a constitutional right, nor that
reasonable jurists could debate that proposition.
C
Rice’s notice of appeal as to the March 27, 2014 Order was timely. However,
Rice fails to explain how the district court erred in refusing to permit him to file an
untimely reply brief or what specific constitutional right that district court order violated.
We therefore also deny Rice’s request for a COA to appeal the March 27, 2014 Order. -6- III
For the foregoing reasons, we DENY a COA and DISMISS the appeal as to the
district court’s February 10, 2014 and March 27, 2014 orders. We DISMISS for lack of
jurisdiction Rice’s appeal of the district court’s November 25, 2014 order.
Entered for the Court
Carlos F. Lucero Circuit Judge
-7-