                                                           FILED
                                               United States Court of Appeals
                UNITED STATES COURT OF APPEALS         Tenth Circuit

                       FOR THE TENTH CIRCUIT                        August 7, 2018
                     _________________________________
                                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court
VICTORIA DAWN WRIGHT,

       Petitioner-Appellant,

v.                                                 No. 18-1111
                                           (D.C. No. 1:17-CV-2937-LTB)
RYAN LONG; CYNTHIA H.                                (D. Colo.)
COFFMAN, Attorney General of the
State of Colorado,

       Respondents-Appellees.
                   _________________________________

                                  ORDER
                     _________________________________

Before BACHARACH, MURPHY, and MORITZ, Circuit Judges.
               _________________________________

      Ms. Victoria Wright seeks a certificate of appealability so that she

can appeal the dismissal of her application for habeas relief. Underlying

the desired appeal is the scope of a district court’s discretion to dismiss an

action based on the claimant’s failure to timely comply with a court order.

      Ms. Wright is a state prisoner who filed an application for habeas

relief. She could pursue the application only by prepaying the filing fee or

obtaining leave to proceed in forma pauperis; Ms. Wright opted to move in

district court for leave to proceed in forma pauperis.

      With her motion, Ms. Wright submitted an institutional account

statement reflecting transactions from February 2011 to August 2017. But
Ms. Wright filed the habeas application over four months after the latest of

these transactions. Thus, the district court sent Ms. Wright an order

directing her to submit an account statement showing the current balance

in her institutional account. In this order, the court stated that a failure to

submit the account statement within thirty days would result in dismissal

of the action without further notice.

      Ms. Wright was transferred to another prison, so the court sent the

order to her again on January 10, 2018, restarting the thirty-day period.

The court warned her again that failure to comply within thirty days would

result in dismissal of the action without further notice. After thirty days

passed without a response, the district court dismissed Ms. Wright’s

application for habeas relief. Afterward, Ms. Wright submitted a response.

But the district court declined to consider the response because it was

untimely.

      Ms. Wright challenges this ruling, arguing that her response was

timely because she had mailed it within thirty days of her receipt of the

order. In our view, however, no reasonable jurist would credit this

argument because Ms. Wright needed to comply within thirty days of the

date that the order had been issued, not received.

      We will grant a certificate of appealability only if the district court’s

dismissal is subject to reasonable debate. Slack v. McDaniel, 529 U.S. 473,

484 (2000). To decide if the dismissal is reasonably debatable, we conduct

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a preliminary review of Ms. Wright’s argument based on what she would

ultimately need to show a merits panel. See Buck v. Davis, 137 S. Ct. 759,

774 (2017). Here the required showing would entail an abuse of discretion.

AdvantEdge Bus. Grp., L.L.C. v. Thomas E. Mestmaker & Assocs., Inc.,

552 F.3d 1233, 1236 (10th Cir. 2009).

      No reasonable jurist would view the district court’s ruling as an

abuse of discretion. As the court reasoned, Ms. Wright’s response was

untimely under any conceivable counting rules. On January 10, 2018, the

district court ordered compliance within “thirty (30) days from the date of

this minute order.” Minute Order at 1, Wright v. Long, No. 17-cv-02937-

GPG (D. Colo. Jan. 10, 2018), ECF No. 14 (emphasis omitted). Under this

order, the last day to respond was February 9, 2018. Ms. Wright put her

response in the mail five days after the 30-day deadline. Therefore, any

reasonable jurist would consider her response untimely.

      Ms. Wright argues that she had 30 days from the day that she

received the order. If she were right, the 30-day period would have started

on January 15 rather than January 10. But the order set its deadline “thirty

(30) days from the date of this minute order,” not from the date of receipt

of the minute order. Id. In light of the wording in the order, all reasonable

jurists would consider Ms. Wright’s response untimely. See In re

Armstrong, 99 F. App’x 866, 868–69 (10th Cir. 2004) (unpublished)



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(rejecting as untimely a filing because the filer had five days from the

order’s date of filing rather than service).

      Ms. Wright invokes the prison mailbox rule. This rule provides some

leeway for inmate filings, but it does not affect the start of the thirty-day

period. Under the rule, inmate filings can be timely if they are “given to

prison officials for mailing prior to the filing deadline” even if the court

receives the filings after the deadline. Price v. Philpot, 420 F.3d 1158,

1164 (10th Cir. 2005) (emphasis added). The prison mailbox rule does not

affect the start date when the court gives a prisoner a certain number of

days to file something. Cf. Jenkins v. Burtzloff, 69 F.3d 460, 461–62 (10th

Cir. 1995) (holding that the prison mailbox rule does not apply to the start

of the period for filing a notice of appeal).

      Because the prison mailbox rule is facially inapplicable, no

reasonable jurist could consider the ruling an abuse of discretion. As a

result, we decline to issue a certificate of appealability. In the absence of a

certificate, we must also dismiss the appeal. See 28 U.S.C.

§ 2253(c)(1)(B).

      In addition to the dismissal, however, we must decide whether to

grant Ms. Wright’s motion for leave to proceed in forma pauperis. Granting

this motion would relieve Ms. Wright of her obligation to prepay the filing

fee for the appeal. This time, she has provided an updated account



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statement, which shows an inability to prepay the filing fee. Therefore, we

grant her motion for leave to proceed in forma pauperis in the appeal.

                                   Entered for the Court


                                   Robert E. Bacharach
                                   Circuit Judge




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