                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                            JUN 13 2003
                                 TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                 Clerk

 CURTIS GALEN SIMPSON,

               Plaintiff-Appellant,                       No. 02-4175
          v.                                                  (D. Utah)
 PAUL LUNDELL, Correctional                     (D.C. No.02:95-CV-621-DAK)
 Officer, Utah State Prison,

               Defendant-Appellee.


                           ORDER AND JUDGMENT             *




Before EBEL , HENRY , and HARTZ , Circuit Judges.



      In July 1995, Plaintiff Curtis Galen Simpson, a state prisoner now

appearing pro se, filed a civil rights action in the United States District Court for

the Central District of Utah. The case proceeded to trial against Defendant Paul




      *
        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). 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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. 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.
Lundell, who obtained a favorable verdict. Judgment was entered on the verdict

October 14, 1999.

      Eleven days later, Plaintiff’s counsel, Jones, Waldo, Holbrook &

McDonough (Jones, Waldo), filed a post-trial motion on Plaintiff’s behalf. At the

same time, Jones, Waldo filed a motion to withdraw as Plaintiff’s counsel. In the

accompanying memorandum, Jones, Waldo explained that Plaintiff intended to

appeal the jury’s verdict. Plaintiff’s mailing address was listed on the attached

certificates of service.

      The motion to withdraw was granted only two days later. Less than a week

after the successful withdrawal, Plaintiff’s post-trial motion was denied. Notice

of that ruling was sent to Jones, Waldo but not to Plaintiff. Five days after

having sent notice to Jones, Waldo, the court received Plaintiff’s notice of intent

to proceed pro se.

      After waiting more than two years for a ruling on his post-trial motion,

Plaintiff sent a letter of inquiry to the district court judge. By letter dated July 2,

2002, the judge’s law clerk explained that (1) Plaintiff’s motion had been denied

almost three years prior; (2) despite its withdrawal, notice had been sent to Jones,

Waldo; and (3) the court notified Jones, Waldo instead of Plaintiff because at the

time that it ruled, the court had not received Plaintiff’s notice of intent to proceed

pro se. A copy of the order was enclosed.


                                           -2-
      Plaintiff responded with a letter requesting permission to file an appeal out

of time. The district court denied his request, relying on Federal Rule of

Appellate Procedure 4(a)(6). It explained that Rule 4(a)(6) allows the district

court to reopen the time for appeal only if (1) the party seeking to reopen was

entitled to, but did not receive, notice within 21 days of the judgment’s entry; (2)

the motion was filed within the earlier of (i) seven days after actual notice, or (ii)

180 days after entry of judgment; and (3) no party would be prejudiced. Fed. R.

App. P. 4(a)(6); see Fed. R. Civ. P. 77(d) (“Lack of notice of the entry by the

clerk does not affect the time to appeal or relieve or authorize the court to relieve

a party for failure to appeal within the time allowed, except as permitted in Rule

4(a) of the Federal Rules of Appellate Procedure.”) The court found Plaintiff’s

motion untimely. It reasoned that while the motion may have been filed less than

seven days after Plaintiff received actual notice, it was not filed within 180 days

after the judgment’s entry, the earlier, and thus the applicable, date.

      The order denying Plaintiff’s motion was entered on July 17, 2002. This

court received Plaintiff’s notice of appeal on September 3, 2002. Under Federal

Rule of Appellate Procedure 4(d), the notice was treated as received by the

district court on that date—more than thirty days after Plaintiff’s motion to

reopen was denied. Because a timely notice of appeal is a prerequisite to

appellate jurisdiction, see Smith v. Barry, 502 U.S. 244, 245 (1992) (“Rule 3 of


                                          -3-
the Federal Rules of Appellate Procedure conditions federal appellate jurisdiction

on the filing of a timely notice of appeal.”), we directed the parties to file

memoranda addressing our jurisdiction. The issue was later referred to this panel.

We will address the jurisdictional issue before turning to Plaintiff’s arguments on

appeal. See Cudjoe v. Indep. Sch. Dist. No. 12, 297 F.3d 1058, 1063 (10th Cir.

2002) (“[T]his court must always satisfy itself of jurisdiction before addressing

the merits of a claim.”).

      Plaintiff’s appeal was timely if filed “within 30 days after the judgment or

order appealed from [wa]s entered.” Fed. R. App. P. 4(a)(1)(A). Because the

relevant order was entered on July 17, 2002, Plaintiff’s appeal was timely if filed

on or before August 16, 2002. A pro se prisoner, like Plaintiff, is considered to

have “filed” his notice of appeal when that notice is deposited in the institution’s

mail system, not on the date it is filed with the court. Fed. R. App. P. 4(c).

Plaintiff says that he made two unsuccessful attempts to file his notice of appeal

using the institution’s mail system, the first of which occurred on August 5. The

envelope used in this first attempt is not in the record. The envelope used in the

second attempt is postmarked August 17, 2002, one day too late.

      We do not know, however, on what date Plaintiff first presented his notice

to prison authorities for mailing, the relevant date for our purposes. See

United States v. Gray, 182 F.3d 762, 766 (10th Cir. 1999). But there is record


                                           -4-
evidence that his notice of appeal was deposited for mailing on or before

August 16, 2002. Plaintiff’s certificate of service is dated August 5, 2002, and

two letters, both dated before the August 16 deadline, refer to earlier attempts at

mailing. Because Plaintiff’s certificate of service includes a declaration that his

notice of appeal was deposited for mailing on August 5, 2002, and no contrary

evidence has been presented, we consider the notice to have been filed on

August 5. See Marsh v. Soares, 223 F.3d 1217, 1218, n.1 (10th Cir. 2000)

(“Liberal application of the mailbox rule causes us to treat the [plaintiff’s habeas]

petition as placed in the hands of prison authorities on the same day it was

signed.” (citation omitted)); Gray, 182 F.3d at 766. Although there are also

questions about whether Plaintiff adequately addressed the envelopes he used in

his failed attempts to file, we liberally apply the prisoner mailbox rule and

consider his notice of appeal timely. We therefore have jurisdiction and may now

address Plaintiff’s arguments on appeal.

      First, Plaintiff argues that under Federal Rule of Appellate Procedure

4(a)(6) a party may file a motion either within 180 days after entry of the

judgment, or within seven days after having received actual notice. He says that

he meets this standard because he filed his motion only four days after receiving

notice. Next, he argues that because he justifiably relied on the court clerk to

notify him when his post-trial motion was resolved, the time for appeal should


                                           -5-
have been reopened under the unique-circumstances doctrine. See Harris Truck

Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215 (1962). Last, he argues

that Federal Rule of Civil Procedure 77(d)—which provides that the time for

filing a appeal is not affected by the clerk’s failure to notify a party upon entry of

judgment—does not bar the relief he seeks because (1) applying the rule under

these circumstances would not further its purpose, and (2) the rule must be read in

the context of Federal Rule of Civil Procedure 60(b)(6), a rule that Plaintiff

believes entitles him to relief.

      We review for abuse of discretion the district court’s refusal to reopen the

time for filing a notice of appeal under Federal Rule of Appellate Procedure

4(a)(6). Ogden v. San Juan County, 32 F.3d 452, 454-55 (10th Cir. 1994).

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

      We need not address the merits of Plaintiff’s arguments on appeal because

those arguments were not presented to the district court. In his motion for leave

to file an appeal out of time, Plaintiff simply explained how he had discovered

that his post-trial motion was denied. The only argument he made in support was:

“It[’]s not my fault that I didn[’]t file my notice of appeal. I didn[’]t know about

your order dated November 2, 1999.” R., Plaintiff’s Mot. to Reopen Time to

Appeal, filed July 16, 2002, at 2. This statement was not sufficient to alert the

district court to the arguments that Plaintiff now attempts to raise on appeal. We


                                          -6-
therefore need not address them. See King v. United States, 301 F.3d 1270, 1274

(10th Cir. 2002) (As a general rule, “this court will not consider an issue on

appeal that was not raised below.”).

      For substantially the same reasons stated in the district court’s order, we

AFFIRM. We remind Plaintiff that he is obligated to continue making partial

payments toward the appellate filing fee until the entire balance has been paid.


                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




                                         -7-
