                                                                             FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                     September 24, 2008
                                   TENTH CIRCUIT
                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court

 ROBERT WATKINS,

          Petitioner-Appellant,

 v.                                                       No. 07-1222
                                                  (D.C. No. 06-cv-00310-ZLW)
 RONALD LEYBA and                                          (D. Colo.)
 JOHN SUTHERS, Attorney General
 of the State of Colorado,

          Respondents-Appellees.


                                       ORDER *


Before HENRY, Chief Judge, TYMKOVICH, and HOLMES, Circuit Judges.


      Petitioner-Appellant Robert Watkins, a Colorado state prisoner appearing

pro se, seeks a certificate of appealability (“COA”) in order to challenge the

district court’s dismissal of his habeas petition. The district court dismissed his

petition without prejudice because he failed to submit a certified copy of his trust

fund statement as directed by the magistrate judge. Mr. Watkins also seeks leave


      *
          This Order is not binding precedent, except under the doctrines of law
of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with F ED . R. A PP . P. 32.1 and 10th C IR . R. 32.1.
After examining the briefs and the appellate record, this three-judge panel has
determined unanimously that oral argument would not be of material assistance in
the determination of this appeal. See F ED . R. A PP . P. 34(a); 10th C IR . R. 34.1(G).
The case is therefore ordered submitted without oral argument.
to proceed in forma pauperis (“IFP”). We have jurisdiction under 28 U.S.C. §§

1291 and 2253(a). Reviewing Mr. Watkins’s filings liberally, 1 we conclude that

he failed to file a timely notice of appeal, thus, we lack jurisdiction to address his

application for COA, or the merits of his appeal. We therefore DISMISS his

appeal. We GRANT Mr. Watkins’s request to proceed IFP.

                                I. BACKGROUND

      On March 5, 1998, Robert Watkins was convicted of first degree murder,

aggravated robbery and felony murder. On direct appeal, the Colorado Court of

Appeals affirmed his conviction and sentence. Mr. Watkins then filed a post-

conviction motion, pursuant to C OLO . R. C RIM . P. 35(c), claiming ineffective

assistance of both trial and postconviction counsel. On July 8, 2004, the

Colorado Court of Appeals affirmed the trial court’s denial of his motion for

postconviction relief. The Colorado Supreme Court subsequently denied his

petition for certiorari on November 15, 2004.

      On February 13, 2006, Mr. Watkins submitted for filing both a motion for

leave to proceed IFP and an application for writ of habeas corpus to the United

States District Court for the District of Colorado. Identifying deficiencies in Mr.

Watkins’s pleadings—particularly that he had failed to include a certified copy of

his trust account statement with his motion for leave to proceed IFP—the

      1
           Because Mr. Watkins is proceeding pro se, we review his pleadings and
filings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Howard v.
U.S. Bureau of Prisons, 487 F.3d 808, 815 (10th Cir. 2007).

                                          -2-
magistrate judge directed the court clerk to commence a civil action. The court

clerk promptly filed the habeas petition Mr. Watkins had submitted ten days

earlier. The magistrate judge commanded Mr. Watkins to cure the identified

deficiencies within thirty days, and warned that failure to do so would result in

the dismissal of his action without prejudice.

      More than thirty days later, 2 Mr. Watkins filed an application for habeas

and a motion for leave to proceed IFP on March 29, 2006. Although he attached a

copy of his trust account statement to his motion for leave to proceed IFP, the

copy was not certified as required by both the magistrate judge’s order and the

express language of 28 U.S.C. § 1915 (“in addition to filing the affidavit filed

under paragraph (1), [a prisoner] shall submit a certified copy of the trust fund

account statement (or institutional equivalent) for the prisoner for the 6-month

period immediately preceding the filing of the complaint or notice of appeal,

obtained from the appropriate official of each prison at which the prisoner is or

was confined.”). Therefore, on April 3, 2006, the district court denied the habeas

petition, dismissed the action without prejudice, and denied the motion to proceed

IFP as moot.




      2
             March 25, 2006, thirty days after February 23, 2006, marked the end
of the court-ordered filing period. That date fell on a Saturday. Therefore, by
operation of F ED . R. C IV . P. 6(a), Mr. Watkins’s curative pleadings were due on
Monday, March 27, 2006.

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      On April 21, 2006, Mr. Watkins filed a notarized copy of his trust account

statement but did not otherwise seek reconsideration of the district court’s April

3, 2006 order. Over a year after the district court entered its April 3, 2006

judgment, Mr. Watkins filed a notice of appeal. The district court denied both his

motion to proceed on appeal IFP and his request for a COA.

                                 II. DISCUSSION

      Mr. Watkins’s application for a COA seeking to appeal the district court’s

April 3, 2006 order denying his habeas petition is untimely and must be dismissed

for lack of jurisdiction. We acquire jurisdiction only on the filing of a timely

notice of appeal. See Alva v. Teen Help, 469 F.3d 946, 950 (10th Cir. 2006);

Bowles v. Russell, 127 S. Ct. 2360, 2363 (2007) (“[T]he taking of an appeal

within the prescribed time is mandatory and jurisdictional.”) (citations and

internal quotation marks omitted). 28 U.S.C. § 2107(a)—from which Federal

Rule of Appellate Procedure 4(a) derives—requires that an appeal be brought in a

civil case “within 30 days after the entry of [the] judgment, order or decree.”

Here, the record is undisputed that Mr. Watkins filed his notice of appeal on May

21, 2007, more than a year after the district court entered its April 3, 2006 order

denying the habeas petition and dismissing the action without prejudice.

      Our review of the record reveals that Mr. Watkins filed no motion which

would toll the running of the statutory thirty-day period. See F ED . R. A PP . P.




                                          -4-
4(a)(4). 3 Thus, his time to appeal the April 3, 2006 order expired on May 3,

2006. Because he failed to file a notice of appeal or to seek a COA before that

date, he cannot now appeal the order.

      The record indicates that Mr. Watkins may not have immediately received

notice of the district court’s April 3, 2006 order. 4 Nevertheless, we are not

situated to consider this as a ground for excusing his failure to timely file a notice

of appeal. As previously explained, timely filing of a civil appeal is

jurisdictional. Courts have “no authority to create equitable exceptions to

jurisdictional requirements.” 5 Bowles, 127 S. Ct. 2366.



      3
             Rule 4(a)(4) provides that certain motions filed within ten days of the
entry of judgment toll the time to file a notice of appeal. Notably, he filed
nothing within the operative period. Also absent from the record is any
suggestion that Mr. Watkins sought to reopen the time in which to file an appeal.
Pursuant to 28 U.S.C. § 2107(c), “the district court may, upon motion filed within
180 days after entry of the judgment or order or within 7 days after receipt of
such notice, whichever is earlier, reopen the time for appeal . . . .” (emphasis
added). Assuming Mr. Watkins never received notice of the district court’s order,
a motion to reopen was due no later than 180 days from April 3, 2006, or
approximately September 30, 2006. See Clark v. Lavallie, 204 F.3d 1038, 1040
(10th Cir. 2000).
      4
              On June 29, 2006, Mr. Watkins notified the district court of a
change of address. Evidently, he was transferred to another facility before he
received the district court’s April 3, 2006 order because he later informed the
district court twice, on July 31, 2006, and April 13, 2007, of his address change
and requested information regarding the status of his case. On April 16, 2007, the
court clerk mailed a copy of the April 3, 2006 order to Mr. Watkins. He filed his
notice of appeal within thirty days after the clerk mailed the order.
      5
             Mr. Watkins filed a motion to supplement the record. In light of our
jurisdictional determination, we deny that motion as moot.

                                         -5-
      Mr. Watkins also seeks to proceed IFP. To do so, he must comply with the

filing requirements and demonstrate “a financial inability to pay the required

[filing] fees and the existence of a reasoned, nonfrivolous argument on the law

and facts in support of the issues raised on appeal.” McIntosh v. U.S. Parole

Comm’n, 115 F.3d 809, 812 (10th Cir. 1997) (internal quotation marks omitted)

(quoting DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991)). Though

we dismiss Mr. Watkins’s appeal for failure to timely file a notice of appeal and

application for COA, we nonetheless conclude that the arguments he raised in

support of his appeal are not frivolous. Therefore, we GRANT Mr. Watkins

leave to proceed IFP subject to the requirements in 28 U.S.C. § 1915(b).

      This appeal is DISMISSED.



                                       Entered for the Court

                                       Jerome A. Holmes
                                       Circuit Judge




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