                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                           June 28, 2006
                                 TENTH CIRCUIT                         Elisabeth A. Shumaker
                            __________________________                     Clerk of Court

 U N ITED STA TES O F A M ER ICA,

          Plaintiff - Appellee,

 v.                                                         No. 05-6133
                                                         (W .D. Oklahoma)
 A N TH O NY JA BB AR IR VIN G ,                    (D. Ct. No. 04-CV -1600-T)
                                                     (D. Ct. No. 97-CR-159-T)
          Defendant - Appellant.
                         ____________________________

                    OR D ER D EN YING LEAVE TO PROCEED
                       O N APPEAL IN FO RM A PAUPERIS,
                 D EN Y IN G C ER TIFICATE OF APPEALABILITY,
                         A ND DISM ISSIN G A PPLIC ATIO N


Before KELLY, O’BRIEN, and TYM KOVICH, Circuit Judges.




      After examining the briefs and 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.

      Anthony Jabbar Irving, a federal prisoner proceeding pro se, 1 filed a motion

under 28 U.S.C. § 2255 to vacate his sentence and multiple motions to reduce or




      1
        We construe pro se pleadings liberally. Ledbetter v. City of Topeka, Kan., 318
F.3d 1183, 1187 (10th Cir. 2003).
reconsider his sentence. 2 The district court denied all motions. Irving filed

notices of appeal and a motion for leave to proceed on appeal in form a pauperis

(ifp). The district court denied the request to proceed ifp, finding Irving “ha[d]

not presented a reasoned, nonfrivolous argument on appeal,” and the appeal was

“not taken in good faith as the notice of appeal was not filed in a timely manner.”

(R. Doc. 98 at 1.) Irving has filed with this court motions for a certificate of

appealability (COA), for leave to proceed ifp, and for an evidentiary hearing.

See 28 U.S.C. §§ 2253(c)(1)(B), 2255; F ED . R. A PP . P. 22(b)(1), 24(a)(5).

Because of the plethora of motions and orders filed in the district court, a brief

review of the procedural history is required.

                                     Background

      In April 1998, Irving pled guilty to one count of assault resulting in serious

bodily injury, in violation of 18 U.S.C. § 113(a)(6). On June 30, 1998, he was

sentenced to ninety-six months imprisonment. M ore than five years later, in July

2003, Irving began filing motions pro se seeking reconsideration of his sentence.

The district court consistently denied Irving’s motions. In November 2004, Irving

filed another motion for reconsideration and, for the first time, a motion to vacate

his sentence under 28 U.S.C. § 2255. On December 2, 2004, the district court



      2
        Irving styled one motion as a motion for reduction of sentence under Federal
Rule of Criminal Procedure 35. Other motions were for reconsideration of his sentence.
One was a plea for clemency. The other two challenged the enhancement of his sentence
under Blakely v. Washington, 542 U.S. 296 (2004).

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denied the motion for reconsideration. Six weeks later, on January 18, 2005,

Irving filed an identical motion for reconsideration. On January 24, 2005, the

district court denied the motion for reconsideration and issued an order to show

cause w hy Irving’s § 2255 motion should not be dismissed as untimely. On

February 11, 2005, when Irving failed to respond to the order, the district court

denied the § 2255 motion.

       On M arch 11, 2005, due to a possible error in conveying the orders to

Irving, the court vacated its January 24 and February 11 orders, reissued an order

to show cause why the § 2255 motion should not be dismissed as untimely, and

again summarily denied the motion for reconsideration as being “without merit.”

Irving’s notice of appeal from the order denying the motion to reconsider was

filed on M arch 16, 2005. W hen Irving again failed to respond to the order to

show cause, the court, in an order dated M arch 30, 2005, denied the § 2255

motion as untimely, citing 28 U.S.C. § 2255. 3

       Irving’s notice of appeal, dated April 12, 2005, was filed on April 15. This

notice of appeal, which was identical to the notice of appeal filed on M arch 16,

2005, stated it was an appeal “from the final Judgement [sic] Entered in this

action on the 24 Day of January . . . .” (R . Doc. 95.)



       3
         28 U.S.C. § 2255 provides in relevant part: “A 1-year period of limitation shall
apply to a motion under this section. The limitation period shall run from the latest of—
(1) the date on which the judgment of conviction becomes final . . . .”


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                                       Discussion

       I.     Timeliness of Appeal

       The timely filing of a notice of appeal is “mandatory and jurisdictional.”

Budinich v. Becton Dickinson & Co., 486 U.S. 196, 203 (1988). A notice of

appeal must both be timely under Rule 4, Federal Rules of Appellate Procedure,

and meet the content requirements of Rule 3, Federal Rules of Appellate

Procedure. Irving’s multiple notices of appeal stated he was appealing from the

court’s judgment entered on January 24, 2005, and were filed on M arch 16 and

April 15, 2005. Thus we must first address the question of whether we have

jurisdiction over this matter, given the substance and timing of these notices.

       The only appealable order entered by the district court on January 24, 2005,

was its order denying Irving’s motion for reconsideration. Even Irving’s first

notice of appeal, filed on M arch 16, 2005, was filed well beyond the ten-day

period established in Rule 4(b)(a)(A)(I) for the filing of a notice of appeal in a

criminal case. 4 However, the district court vacated its January 24 order and re-

entered an order denying the motion on M arch 11, 2005. Thus, the M arch 16

notice of appeal was timely filed with respect to the court’s extant order.

Similarly, the April 15 notice of appeal was timely filed with respect to the




       4
        Federal Rule of Appellate Procedure 4(b)(1)(A)(I) provides in relevant part: “In a
criminal case, a defendant’s notice of appeal must be filed in the district court within 10
days after . . . the entry of either the judgment or the order being appealed . . . .”

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court’s M arch 30, 2005 denial of Irving’s § 2255 motion. 5

      The question remains, however, whether the notices complied with Rule 3,

which requires a notice of appeal to “designate the judgment, order, or part

thereof being appealed . . . .” F ED . R. A PP . P. 3(c)(1)(B). As a general rule, this

Court applies a “principle of liberal construction in situations where a party has

misdesignated the order appealed from in a notice of appeal.” United States v.

M orales, 108 F.3d 1213, 1222-23 (10th Cir. 1997). Even if the notice fails to

properly designate the order from which an appeal is taken, this Court has

jurisdiction if the appellant’s intention was clear, M orales, 108 F.3d at 1223, the

documents that are filed “provide the functional equivalent of what Rule 3

requires,” Denver & Rio Grande W. R.R. v. Union Pac. R.R., 119 F.3d 847, 849

(10th Cir. 1997) (internal quotation omitted), and the appellee had notice of the

subject of the appeal and suffered no prejudice. Id.

      Here, the intent of Irving’s M arch 16 notice of appeal was clear: he was

appealing from the district court’s order denying his motion for reconsideration.

He denominated the order being appealed as the court’s order of January 24, but

that order was superseded by the court’s M arch 11 orders. Liberally construing

both Rule 3 and Irving’s pleadings, we conclude the M arch 16 notice of appeal

was “an effective, although inept attempt to appeal” from the court’s order



      5
        An appellant has sixty days under Rule 4(a)(1)(B) to file a notice of appeal from
the denial of a § 2255 motion. United States v. Pinto, 1 F.3d 1069, 1070 (10th Cir. 1993).

                                           -5-
denying the motion for reconsideration. Herron v. Rozelle, 480 F.2d 282, 285

(10th Cir. 1973) (internal quotations omitted).

      Similarly, Irving’s April 15 notice of appeal, when taken in conjunction

with his motion for leave to proceed ifp, provides the “functional equivalent” of

what Rule 3 requires in terms of designating the order from which the appeal is

taken. On the motion for leave to proceed ifp, Irving indicated the matter was a

“habeas corpus” action. (R. Doc. 96 at 1.) This evinces Irving’s intent to appeal

the district court’s order denying the § 2255 motion.

      The notices of appeal were timely filed and adequately, though inartfully,

designated the orders being appealed. W e have jurisdiction over this matter.

      II.    Certificate of Appealability

      A COA is a jurisdictional pre-requisite to our review. M iller-El v.

Cockrell, 537 U .S. 322, 336 (2003). W e will issue a COA only if Irving makes a

“substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). To make this showing, he must establish that “reasonable jurists

could debate whether . . . the petition should have been resolved [by the district

court] in a different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Slack v. M cDaniel, 529 U.S. 473, 483-84

(2000) (internal quotation omitted). Insofar as the district court dismissed his

habeas petition on procedural grounds, Irving must demonstrate both that “jurists

of reason would find it debatable whether the petition states a valid claim of the

                                         -6-
denial of a constitutional right and that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.” Id. at 484. Irving

has not met this burden.

      “W here a plain procedural bar is present and the district court is correct to

invoke it to dispose of the case, a reasonable jurist could not conclude either that

the district court erred in dismissing the petition or that the petitioner should be

allowed to proceed further.” Id. The district court correctly found Irving’s

motion was time-barred. Irving’s sentence became final on July 13, 1998, when

his time for pursuing a direct appeal expired. Kapral v. United States, 166 F.3d

565, 577 (10th Cir. 1999) (“If a defendant does not pursue a timely direct appeal

to the court of appeals, his or her conviction and sentence become final, and the

statute of limitation begins to run, on the date on which the time for filing such an

appeal expired.”). His § 2255 motion was filed on N ovember 23, 2004, well past

the one year statute of limitations in 28 U.S.C. § 2255.

      Irving did not raise any allegations w arranting the application of equitable

tolling either in the district court or in his application for COA to this Court. See

Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (equitable tolling permitted

in only rare and exceptional circumstances); United States v. Willis, 202 F.3d

1279, 1281 n.3 (10th Cir. 2000) (case must present extraordinary circumstances to

warrant equitable tolling). Because reasonable jurists could not conclude the

district court erred in dismissing Irving’s § 2255 motion as untimely, we DENY

                                          -7-
his request for a C OA .

      III.    M otion for Leave to Proceed ifp

      A prisoner seeking leave from this court to proceed ifp must show “the

existence of a reasoned, nonfrivolous argument on the law and facts in support of

the issues raised on appeal.” DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th

Cir. 1991). After reviewing Irving’s contentions, and affording weight to the

district court’s decision, Coppedge v. United States, 369 U.S. 438, 446 (1962), w e

adopt the district court’s finding to the extent it found Irving has not presented a

reasoned nonfrivolous argument, and thus the request to appeal is not taken in

good faith.

      Based on the above, we DENY Irving’s request for a COA and dismiss his

application. We D EN Y his request for an evidentiary hearing. Finally, we DEN Y

his motion to proceed ifp and order him to immediately remit the full amount of

the filing fee. W e remind him of his obligation to pay the filing fee even on a

case that has been dismissed.

D ISM ISSE D.

                                        Entered by the C ourt:

                                        Terrence L. O ’Brien
                                        United States Circuit Judge




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