                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                        January 26, 2006
                                   TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                          Clerk of Court

 SAHIB QUIETMAN HENDERSON,

          Plaintiff - Appellant,
                                                         No. 04-6391
 v.
                                                  (D.C. No. CIV-03-1320-M)
                                                         (W.D. Okla.)
 CHARLES RAY,

          Defendant - Appellee.


                             ORDER AND JUDGMENT *


Before EBEL, McKAY and HENRY, Circuit Judges.


      Plaintiff-Appellant Sahib Henderson appeals the district court’s ruling that

Henderson’s notice of appeal divested it of jurisdiction to consider substantive

motions in the case and requests that this court grant him a certificate of

appealability (“COA”) to challenge the district court’s rejection of his petition for




      *
        After examining appellant’s brief and the 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) and 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Order and Judgment is not binding precedent, except under the doctrines of law of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.
habeas corpus. We AFFIRM the district court’s jurisdictional ruling and DENY

Henderson’s request for a COA.

                                 BACKGROUND

        Henderson was convicted by an Oklahoma state court of distribution of a

controlled dangerous substance. His conviction and sentence were affirmed on

direct appeal, and his application for state post-conviction relief was denied.

        Henderson then filed a pro se petition pursuant to 28 U.S.C. § 2254 seeking

a writ of habeas corpus. He raised numerous grounds on which he claimed he was

entitled to relief. 1 In a thorough report and recommendation, United States

Magistrate Judge Doyle Argo reviewed the merits of Henderson’s claims and

recommended that his petition be denied. The district court adopted this report

and recommendation and denied Henderson’s habeas petition on December 2,

2004.




        Henderson claimed the following grounds for relief: (1) insufficient
        1

evidence to prove that he committed the crime for which he was charged;
(2) ineffective assistance of appellate counsel; (3) ineffective assistance of trial
counsel; (4) the application of an unconstitutional constructive amendment to the
charging document; (5) admission of videotaped evidence in violation of
Henderson’s right to confront witnesses; (6) admission of evidence obtained
during a warrantless search and in violation of Henderson’s right to privacy;
(7) entrapment; (8) biased jury; (9) prosecutorial misconduct; (10) improper jury
instructions; (11) abuse of judicial discretion in the admission of certain evidence
and other procedural errors; and (12) entitlement to a downward departure.

                                        -2-
      On December 9, Henderson filed a motion for an extension of time to file a

motion for rehearing; the district court granted the motion the next day, giving

Henderson until December 22 to file his motion. However, on December 9,

Henderson also filed his notice of appeal of the December 2 order denying his

habeas petition. Construing this notice of appeal as a request for a certificate of

appealability (“COA”), the district court denied the request on December 17. On

December 22, the district court considered two motions filed by Henderson the

previous day—a second motion for an extension of time and a motion to modify

his underlying sentence. Finding that the filing of a notice of appeal divests the

district court of jurisdiction over all except the most tangential matters, the court

ruled that it lacked jurisdiction to consider the two motions.

      Henderson then filed three motions with the district court on January 13,

2005: a second motion for modification of his sentence; a motion for relief from

judgment; and an “Amendment (Motion to Vacate Violation of Due Process).”

The district court denied the motion for relief from judgment and found that it

lacked jurisdiction to act upon the motion for modification of sentence. 2 It does

not appear that the district court acted on the “amendment.”




      2
        The orders are not included in the appellate record, thus we cannot
determine if the denial of the motion for relief from judgment was also on
jurisdictional grounds.

                                         -3-
      Henderson has submitted three filings to this court. On December 30,

2004, Henderson filed a “motion for a procedural order,” seeking two specific

orders: an order requiring the district court to rule on his original motion for a

modification of sentence; and an order requiring the district court to give him

time to seek reconsideration of the district court’s denial of his habeas petition.

      Then, on February 14, 2005, Henderson filed an application in this court for

a COA. In the application, Henderson also argues that he has no access to a

prison law library and that the district court erred in not voiding his notice of

appeal and considering, on the merits, his original motion to modify his sentence.

He also appears to ask this court to rule on or review his January 13 motions, two

of which he attaches to the application.

      Finally, in response to an order by this court, Henderson filed an “opening

brief” on April 18, 2005. In this filing, he moved to adopt his previously filed

application for a COA as the opening brief in this case. He reiterated his

argument that the district court erred in not considering his original motion to

modify his sentence; in support for this argument, he claimed his “premature”

filing of his notice of appeal (i.e., filing the notice before filing his motion to

reconsider the sentence) was caused by his lack of access to a prison law library. 3


      3
        Specifically, Henderson alleges that the prison has no law library, and that
legal services are provided by a law firm that is under contract with the prison.
                                                                       (continued...)

                                           -4-
                                   DISCUSSION

             A pro se litigant’s pleadings are to be construed liberally and held
      to a less stringent standard than formal pleadings drafted by lawyers.
      We believe that this rule means that if the court can reasonably read the
      pleadings to state a valid claim on which the plaintiff could prevail, it
      should do so despite the plaintiff’s failure to cite proper legal authority,
      his confusion of various legal theories, his poor syntax and sentence
      construction, or his unfamiliarity with pleading requirements. At the
      same time, we do not believe it is the proper function of the district
      court to assume the role of advocate for the pro se litigant.

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citations, footnote

omitted).

      Liberally construing Henderson’s filings with this court, we find he raises

three issues. First, his application for a COA and his opening brief seek a COA

to appeal the district court’s decision rejecting his habeas petition. Second, his

“motion for a procedural order,” as well as portions of his application for a COA

and his opening brief, are properly construed as challenging the district court’s

December 22 decision that it lacked jurisdiction to consider Henderson’s

motions. 4 Finally, his application for a COA appears to ask this court to rule on

      3
       (...continued)
He claims the contract firm is insufficient given that there are more than 960
inmates at the prison.
      4
       Henderson’s motion for a procedural order specifically asks this court to
issue an order instructing the district court to consider his motion for a
modification of sentence. “Procedural orders” refer to “motions which do not
substantially affect the rights of the parties or the ultimate disposition of the
appeal,” such as motions for an extension of time. See Fed. R. App. P. 27
                                                                         (continued...)

                                         -5-
or review the three motions that he filed with the district court on January 13th.

We consider these arguments in turn.

                               Application for a COA

      “Where a district court has rejected the constitutional claims on the merits,

the showing required to [obtain a COA] is straightforward: The petitioner must

demonstrate that reasonable jurists would find the district court’s assessment of

the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473,

484 (2000).

      None of Henderson’s three filings with this court attempt to make any

showing that the disposition of his claims was debatable or wrong. Instead, they

focus on Henderson’s claim that the district court’s December 22 decision

improperly dismissed his pending motions for lack of jurisdiction. Nonetheless,

we have reviewed the magistrate’s report and recommendation, on which the

district court based its denial of Henderson’s habeas petition, and find it thorough

and well-reasoned. In short, we have no reason to think that the district court’s

dismissal of Henderson’s habeas petition was “debatable or wrong.” 5

      4
        (...continued)
advisory committee notes (1967 Adoption). The relief Henderson seeks—a
chance to have the district court rule on the merits of his post-notice of appeal
motions—would require a decision of this court reversing the district court’s
jurisdictional ruling.
      5
          Henderson attached his “Amendment (Motion to Vacate Violation of Due
                                                                   (continued...)

                                         -6-
                       December 22 Jurisdictional Decision

      The district court ruled that it lacked jurisdiction to consider Henderson’s

motions for a modification of sentence and for a second extension of time in

which to file a motion for rehearing. We review the district court’s dismissal for

lack of jurisdiction de novo. See, e.g., Merida Delgado v. Gonzales, 428 F.3d

916, 919 (10th Cir. 2005).

      As a general rule, “[t]he filing of a notice of appeal is an event of

jurisdictional significance—it confers jurisdiction on the court of appeals and

divests the district court of its control over those aspects of the case involved in

the appeal.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982).

However, the timely filing of certain post-trial motions 6—even if filed after the



      5
        (...continued)
Process)” and his second motion for a modification of his sentence, both
originally filed in the district court, to his application for a COA. To the extent
that he attaches these motions to raise arguments made therein, we caution that
we generally do not consider such arguments incorporated by reference. See 10th
Cir. R. 28.4; United States v. Gabriele, 1997 WL 31543, *1 n.1 (10th Cir. Jan 27,
1997) (unpublished).
       In any event, we have reviewed these motions and they do not affect our
disposition of this matter. The “amendment” largely reiterates arguments already
rejected by the magistrate’s recommendations and does not show that reasonable
jurists would question the magistrate’s assessments. Similarly, the motion for a
modification of the sentence seems to argue only that Henderson’s sentence was
improperly enhanced.
      6
       The divesting motions are those listed in Fed. R. App. P. 4(a)(4)(A). See
also Stone v. I.N.S., 514 U.S. 386, 402 (1995) (noting that Rule 4(a)(4) specifies
the post-judgment motions that divest the appellate court of jurisdiction).

                                         -7-
filing of a notice of appeal—divests the appellate court of jurisdiction conferred

on it by the notice. See Stone, 514 U.S. at 402-03 (“The majority of post-trial

motions, such as [a Fed. R. Civ. P.] Rule 59 [motion for a new trial], render the

underlying judgment nonfinal . . . when filed after the notice of appeal (thus

divesting the appellate court of jurisdiction).”).

      Here, Henderson did not file a motion that operated to divest this court of

jurisdiction. While he did seek an extension of time to file a motion for

“rehearing”—a motion which, if timely filed, could be construed as a Rule 59

motion, see Trotter v. Regents of Univ. of N.M., 219 F.3d 1179, 1183 (10th Cir.

2000)—he did not file such a motion within the 10-day period provided by Rule

59. 7 As Henderson did not file any jurisdiction-divesting motion with the district

court, the general rule that the filing of a notice of appeal places jurisdiction in

this court and removes it from the district court applied. Thus the district court’s

dismissal for lack of jurisdiction was correct. 8

      7
       Fed. R. Civ. P. 6(b) specifically provides that a court may not grant an
extension of time to file a Rule 59 motion. Thus once the 10-day window had
elapsed, any subsequent motion for rehearing would not be construed as a Rule 59
motion and would therefore not divest this court of jurisdiction over the appeal.
      8
       Much of Henderson’s pleadings focus on the claim that the reason he filed
his notice of appeal before filing a motion for rehearing is that he lacked the
knowledge of how to properly proceed given the prison’s lack of a law library and
insufficient legal assistance. However, Henderson’s filing of his notice of appeal
divested jurisdiction from the district court, meaning that it lost its power to
entertain the motions. See, e.g., D.L. v. Unified School Dist. No. 497, 392 F.3d
                                                                         (continued...)

                                         -8-
                               January 13th Motions

      Henderson’s application for a COA states that

      [t]he Petitioner, appeals to this Court, for a ruling on the:

      1. Motion for Relief from Judgment
      2. Amendment/violation of Due Process
      3. Motion for Modification of sentence

      Filed on the 13th day of January 2005, in the District Court; to be
      adopted in this Court, as evidence of the denial of Constitutional rights,
      and that this cause deserves further proceedings . . . .

       To the extent that Henderson is asking this court to rule on the motions, we

note that the district court has already ruled on (and rejected) his motion for relief

from judgment and his motion for modification of sentence. As a result, the

proper relief would be a reversal of the district court’s decision, not a new ruling

on the motion. As for his “amendment/violation of Due Process,” which the

district court apparently has not disposed of, we do not consider issues not ruled




      8
        (...continued)
1223, 1229 (10th Cir. 2004) (noting that federal courts have no power to decide
an issue if they lack jurisdiction). The reason for divesting the court of
jurisdiction (i.e., the “premature” filing of a notice of appeal) is irrelevant.
       We note that Henderson alleges that his lack of access to a prison library
violates the principles of Lewis v. Casey, 518 U.S. 343 (1996). However, such a
challenge to the conditions of confinement is properly brought as a civil rights
claim under 42 U.S.C. § 1983. See, e.g., Cotton v. Looney, 2005 WL 3418659
(10th Cir. Dec. 14, 2005) (unpublished).

                                         -9-
on by the district court. See In re R. Eric Peterson Const. Co., 951 F.2d 1175,

1182 (10th Cir. 1991). 9

      Assuming Henderson is actually attempting to appeal the district court’s

disposal of his motions for relief from judgment and modification of his sentence,

we note that copies of the orders disposing of the motions are not included in the

record. The district court’s docket states that the motion for modification of

sentence was dismissed for lack of jurisdiction. As discussed above, that

jurisdictional ruling was correct. The docket does not explain the grounds for

denial of the motion for relief from judgment, thus we cannot review that claim.

See King v. Unocal Corp., 58 F.3d 586, 588 (10th Cir. 1995) (“Because Appellant

did not provide us with a proper record, we cannot review his appellate issue.”).

                                 CONCLUSION

      We GRANT Henderson’s motion to adopt his application for a COA as his

opening brief in this case. However, for the foregoing reasons, we DENY




      9
        Henderson’s “amendment” appears to be raising arguments that are
properly raised in a habeas petition. To the extent that Henderson wishes to file a
successive habeas petition, he must file a motion with this court for an order
authorizing the district court to consider the petition. See 28 U.S.C. §
2244(b)(3)(A). We note that he may not raise any claim that was presented in his
original habeas petition. See 28 U.S.C. § 2244(b)(1). Further, he is barred from
raising new issues not presented in the initial habeas petition unless those issues
fall into one of the exceptions in 28 U.S.C. § 2244(b)(2).

                                        - 10 -
Henderson’s request for a COA and AFFIRM the district court’s December 22

jurisdictional ruling.



                                   ENTERED FOR THE COURT



                                   David M. Ebel
                                   Circuit Judge




                                    - 11 -
