                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         FEB 2 1999
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk


MICHAEL BATTEN,

          Petitioner-Appellant,

v.                                                     No. 98-6326
                                                 (W. District of Oklahoma)
LARRY FIELDS; ATTORNEY                            (D.C. No. 96-CV-1164)
GENERAL OF THE STATE OF
OKLAHOMA,

          Respondents-Appellees.




                             ORDER AND JUDGMENT *


Before TACHA, McKAY, and MURPHY, 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.




      *
       This order and judgment is not binding precedent, except under the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.
      The procedural history surrounding this appeal is important. On July 19,

1996, petitioner Michael S. Batten filed a pro se petition pursuant to 28 U.S.C. §

2254 challenging his 1992 Oklahoma convictions on constitutional grounds. On

March 12, 1997, a magistrate judge issued a Report and Recommendation

(“R&R”), recommending that Batten’s petition be denied. Upon de novo review

of those portions of the R&R objected to by Batten, the district court adopted the

R&R and denied the petition on August 4, 1997. On July 31, 1998, almost one

year later, Batten filed a notice of appeal. 1 On August 19, 1998, this court issued

a show-cause order, ordering the parties to respond to the following question:

“Whether the [July 31, 1998] notice of appeal was timely filed 30 days after entry

of the district court’s August 4, 1997 Judgment or was it filed nearly 11 months

late?” In response to this order, Batten filed in the district court a Motion for

Exception to File Out-of-Time Appeal. The district court denied the motion on

September 28, 1998, holding as follows:

           Petitioner has filed a Motion for Exception to File Out-of-
      Time Appeal, requesting that this Court grant him permission to file


      1
        Batten’s notice of appeal was actually received in the district court on
August 5, 1998. Nevertheless, because Batten “certified” that his notice of appeal
was placed in the prison mail system on July 31 st, the district court treated the
notice of appeal as filed on the 31 st. See Houston v. Lack, 487 U.S. 266, 275
(1988) (holding that a pro se prisoner’s notice of appeal is filed at the moment it
is delivered to prison authorities for forwarding to the district court). It should be
noted, however, that this distinction is irrelevant to the determination of this
particular appeal.

                                         -2-
      a late appeal because he did not receive a copy of this Court’s August
      4, 1997, Judgment denying habeas relief until July 23, 1998. In
      support of his motion, he asserts that he notified the Court on
      September 9, 1997, of a change of address, and notified the Court on
      December 9, 1997, of a second change of address.
             Pursuant to Fed. R. App. P. Rules 3 and 4(a)(1), an appeal
      must be filed within [30] days of the date of entry of the judgment.
      In the instant case, this would have been October 3, 1997. Pursuant
      to Fed. R. App. P. Rule 4(a)(6), the Court may grant an extension of
      14 days to file a notice of appeal if the petitioner did not receive
      notice of the entry of judgment within 21 days of its entry, and no
      party would be prejudiced. However, the petitioner also must have
      filed a motion within 180 days of judgment or within seven days of
      the receipt of the notice of judgment, whichever is earlier. Fed. R.
      App. P. Rule 4(a)(6). Petitioner acknowledges that he “first knew of
      the denial” on November 7, 1997. Thus, he had until the earliest date
      of November 14, 1997 (seven days from date he received notice of
      entry of judgment) or January 1, 1998 (180 days from the entry of
      judgment) 2 to file the notice of intent to appeal. In the instant case,
      the earlier date is November 14, 1997. However, even assuming
      Petitioner did not receive notice of the judgment as contemplated by
      Rule 4(a)(6) until July 23, 1998 [the date Batten received an actual
      copy of the judgment denying habeas relief], the outer time limit of
      180 days expired on January 1, 1998, and thus his Notice of Intent of
      Appeal, filed in this Court on August 5, 1998, and allegedly mailed
      on July 31, 1998, is untimely. Accordingly, Petitioner’s motion
      requesting an out-of-time appeal is DENIED.

Finally, in response to the district court’s order, Batten filed a pro se brief in this

court on October 13, 1998, arguing both the merits of his underlying habeas



      2
        The district court erred in calculating the 180-day time frame from the
filing of the judgment. The January 1, 1998, cut-off date adopted by the district
court is only 150 days from the entry of the August 4, 1997, judgment. The
appropriate cut-off date is January 31, 1998. Because Batten filed his motion for
extension on August 12, 1998, well after the proper cut-off date, the district
court’s computational error is irrelevant to this court’s disposition of this appeal.

                                          -3-
appeal and the propriety of the district court’s denial of his motion to file an out-

of-time appeal.

      In light of this procedural history, it is clear that this court lacks

jurisdiction to review the district court’s August 4, 1997, Judgment denying

Batten’s § 2254 petition. The thirty-day deadline for the timely filing of a notice

of appeal under Fed. R. App. P. 4(a)(1) expired on September 3, 1997. Batten’s

notice of appeal was filed in the district court on July 31, 1998, many months

beyond the thirty-day deadline. The “taking of an appeal within the prescribed

time is mandatory and jurisdictional.” Budinich v. Becton Dickinson & Co., 486

U.S. 196, 203 (1988). Furthermore, this court “lacks discretion to consider the

merits of a case over which it is without jurisdiction.” Firestone Tire & Rubber

Co. v. Risjord, 449 U.S. 368, 379-80 (1981). Inasmuch as Batten did not file his

notice of appeal until almost one year after the district court’s Judgment in this

case, this court is without jurisdiction over the merits of the denial of Batten’s

§ 2254 petition. See Ogden v. San Juan County, 32 F.3d 452, 455 (10 th Cir. 1994)

(holding that pro se appellants must comply with the requirements of the Federal

Rules of Appellate Procedure that govern all litigants).

      This court’s conclusion that it is without jurisdiction to review the merits of

the denial of Batten’s § 2254 petition does not end the inquiry. As noted above,

Batten filed in the district court a motion for order granting an exception to file


                                           -4-
an out-of-time brief pursuant to Fed. R. App. P. 4(a)(6) on August 12, 1998. The

district court denied Batten’s Rule 4(a)(6) motion by written order on September

28, 1998. On October 13 th, within thirty days of the entry of the district court

order denying Batten’s Rule 4(a)(6) motion, Batten filed a brief in this court

which discusses the denial of the Rule 4(a)(6) motion. Treating that brief as the

functional equivalent of a notice of appeal, see Smith v. Barry, 502 U.S. 244, 248-

49 (1992), this court has jurisdiction over the district court’s September 28, 1998,

Order denying Batten’s Rule 4(a)(6) motion. Upon review of the parties’ briefs

and contentions on appeal and the district court’s September 28 th Order, this court

finds no reversible error and affirms for substantially those reasons set out in the

September 28 th Order.

      For those reasons set out above, Batten’s appeal of the district court’s

August 4, 1997, denial of Batten’s § 2254 petition is DISMISSED for lack of

appellate jurisdiction. The district court’s denial of Batten’s Rule 4(a)(6) motion

is AFFIRMED.

                                       ENTERED FOR THE COURT:



                                       Michael R. Murphy
                                       Circuit Judge




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