Carr v. Miller et al

Filing 21

ORDER denying 14 Motion Pursuant to Rule 61 Harmless Error, and denying without prejudice 15 Motion for Appointment of Counsel and 16 Motion for Leave to Appeal in Forma Pauperis, by Judge Lewis T. Babcock on 1/29/14.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-01951-LTB
CHRISTOPHER CARR,
Applicant,
v.
MIKE MILLER, Warden, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.
ORDER
This matter is before the Court on the “Motion Pursuant to Rule 61 Harmless
Error” (ECF No. 14) filed pro se by Applicant on January 23, 2014. Applicant seeks
permission to refile a notice of appeal from the Court’s Order of Dismissal (ECF No. 12)
and the Judgment (ECF No. 13) entered in this action on October 3, 2013. Plaintiff also
has filed on January 23, 2014, a letter that has been docketed as a Notice of Appeal
(ECF No. 17), a “Motion for Appointment of Counsel” (ECF No. 15) and a “Prisoner’s
Motion and Affidavit for Leave to Proceed on Appeal Pursuant to 28 U.S.C. § 1915 and
Fed. R. App. P. 24” (ECF No. 16).
The Court must construe the pending motions liberally because Applicant is not
represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an
advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated
below, the motions will be denied.
Applicant seeks permission to refile a notice of appeal in this Court because he
allegedly received erroneous advice from legal clerks at the prison in which he is
incarcerated that led him to submit his original notice of appeal directly to the Tenth
Circuit. He alleges in the letter docketed as a notice of appeal (ECF No. 17) that he

filed the original notice of appeal in the Tenth Circuit on October 18, 2013; he wrote to
the Tenth Circuit on November 18, 2013, inquiring about the status of motions he
submitted with the notice of appeal; and he received a response from the Tenth Circuit
stating that the Tenth Circuit had not received the notice of appeal. Applicant has
submitted as an exhibit a copy of a letter from the Chief Deputy Clerk of the Tenth
Circuit dated November 21, 2013, stating that Applicant did not have a case pending in
the Tenth Circuit and advising Applicant that an appeal is initiated by filing a notice of
appeal in the district court where the case originated. (See ECF No. 17 at 2.) Applicant
also has submitted as an exhibit a copy of an Outgoing Restricted Inspection Mail Log
that indicates he mailed something to the Tenth Circuit on October 18, 2013. (See id. at
3.)
Pursuant to Rule 4(a)(1)(A) of the Federal Rules of Appellate Procedure, a notice
of appeal in a civil case generally must be filed with the clerk of the district court within
thirty days after the judgment or order appealed from is entered. As noted above, the
Court’s Judgment in this action was entered on October 3, 2013. Therefore, the thirtyday period to file a notice of appeal expired on November 4, 2013,1 and Applicant’s
notice of appeal filed on January 23, 2014, is untimely. Based on Applicant’s
allegations in the “Motion Pursuant to Rule 61 Harmless Error” and the letter docketed
as a notice of appeal, the Court construes the “Motion Pursuant to Rule 61 Harmless
Error” liberally as both a motion to extend the time to file a notice of appeal and to
reopen the time to file a notice of appeal.
The Court first will address whether the time to file a notice of appeal may be
extended. Pursuant to Rule 4(a)(5)(A), the Court may extend the time to file a notice of
appeal if the party moves for an extension of time within thirty days after the time

1

The thirtieth day after October 4, 2013, was Saturday, November 2, 2013. Therefore, the time to
file a notice of appeal was extended until the following Monday. See Fed. R. App. P. 26(a)(1)(C).

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provided in Rule 4(a) expires and the party shows excusable neglect or good cause.
The liberally construed motion for an extension of time will be denied because the
motion, which was filed more than thirty days after November 4, 2013, is untimely.
Furthermore, even if the motion was timely, the Court finds that Applicant fails to
demonstrate excusable neglect or good cause. Although Applicant was advised by
letter dated November 21, 2013, that the Tenth Circuit had not received the notice of
appeal he allegedly submitted to that court, Applicant failed to take any further action
until filing the “Motion Pursuant to Rule 61 Harmless Error” and other documents in this
Court on January 23, 2014.
The Court next will address whether the time to file a notice of appeal may be
reopened. Pursuant to Rule 4(a)(6), the Court may reopen the time to file a notice of
appeal if three conditions are met. One of the conditions is that the moving party did not
receive notice of entry of the judgment or order sought to be appealed within twenty-one
days after the judgment or order was entered. It is apparent that Applicant received
timely notice of the Court’s Order of Dismissal and Judgment because he alleges that
he filed a notice of appeal on October 18, 2013. Therefore, the liberally construed
motion to reopen the time to file a notice of appeal also will be denied.
In summary, whether the “Motion Pursuant to Rule 61 Harmless Error” is
construed as a motion for an extension of time to file a notice of appeal or as a motion
to reopen the time to file a notice of appeal, the motion must be denied. Applicant’s
“Motion for Appointment of Counsel” (ECF No. 15) and the “Prisoner’s Motion and
Affidavit for Leave to Proceed on Appeal Pursuant to 28 U.S.C. § 1915 and Fed. R.
App. P. 24” (ECF No. 16) will be denied without prejudice to being refiled in the Tenth
Circuit. Accordingly, it is
ORDERED that the “Motion Pursuant to Rule 61 Harmless Error” (ECF No. 14) is
DENIED. It is
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FURTHER ORDERED that the “Motion for Appointment of Counsel” (ECF No.
15) and the “Prisoner’s Motion and Affidavit for Leave to Proceed on Appeal Pursuant to
28 U.S.C. § 1915 and Fed. R. App. P. 24” (ECF No. 16) are DENIED without prejudice
to being refiled in the Tenth Circuit.
DATED at Denver, Colorado, this 29th day of

January

, 2014.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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