                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                                                                         March 24, 2006
                       UNITED STATES COURT OF APPEALS
                                                                       Elisabeth A. Shumaker
                                                                             Clerk of Court
                                   TENTH CIRCUIT



 OLIVER T. STRINGER,

                  Petitioner-Appellant,                  No. 05-6238
          v.                                           (W.D. of Okla.)
 ERIC FRANKLIN, Warden, James                     (D.C. No. CV-03-1337-C)
 Crabtree Correctional Center,

                  Respondent-Appellee.


               ORDER DENYING CERTIFICATE OF APPEALABILITY                    *




Before TACHA , Chief Judge, HARTZ , and TYMKOVICH , Circuit Judges.              **




      Appellant Oliver Stringer, a pro se prisoner, seeks a certificate of

appealability (COA) to challenge the denial of his motion to reopen the time to

file a notice of appeal. We DENY his request for COA and DISMISS the appeal.



      *
         This order is not binding precedent, except under the doctrines of law of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; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      **
         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 Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
                                    BACKGROUND

      Stringer sought a writ of habeas corpus in the Western District of

Oklahoma, pursuant to 28 U.S.C. § 2254. The district court denied that petition

on the merits on July 27, 2004, but Stringer did not appeal the denial to this court

until April 11, 2005. At that time, we dismissed his appeal as untimely.

      Stringer subsequently filed a motion with the district court to reopen the

time to file an appeal, pursuant to Rule 4(a)(6) of the Federal Rules of Appellate

Procedure.   1
                 The district court denied the motion on the grounds that Stringer’s

motion did not meet the time requirements under Rule 4(a)(6)(A). He now

appeals that decision to this court and seeks a COA.

                                       ANALYSIS

      On appeal Stringer argues that the district court erred in denying the motion



      1
       Rule 4(a)(6) states:
      Reopening the Time to File an Appeal. The district court may reopen
      the time to file an appeal for a period of 14 days after the date when its
      order to reopen is entered, but only if all the following conditions are
      satisfied: (A) the court finds that the moving party did not receive
      notice under Federal Rule of Civil Procedure 77(d) of the entry of the
      judgment or order sought to be appealed within 21 days after entry; (B)
      the motion is filed within 180 days after the judgment or order is
      entered or within 7 days after the moving party receives notice under
      Federal Rule of Civil Procedure 77(d) of the entry, whichever is earlier;
      and (C) the court finds that no party would be prejudiced.


                                            -2-
under Rule 4(a)(6) and asks for a COA to bring this appeal.    2
                                                                   We will issue a

COA if an applicant “has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). This means that he must

demonstrate “that reasonable jurists could debate whether (or, for that matter,

agree that) the petition should have been resolved in a different manner or that the

issues presented were ‘adequate to deserve encouragement to proceed further.’”

Slack v. McDaniel , 529 U.S. 473, 484 (2000).

       Here, reasonable jurists could not debate whether his Rule 4(a)(6) motion

was appropriate. Rule 4(a)(6) permits the district court to “reopen the time to file

an appeal” if three conditions are satisfied, one of which is that “the motion is

filed within 180 days after the judgment or order is entered or within 7 days after

the moving party receives notice . . . of the entry,   whichever is earlier .” Fed. R.

App. P. 4(a)(6)(B) (emphasis added). Stringer claims he did not receive notice of

the judgment for almost ten months after it was entered, essentially asking the

court to equitably toll the 180-day limitation. However, it is clearly settled that


       2
         In his motion to proceed without payment of costs, Stringer also claims
that he is raising the issue of “[w]hether Federal Rule of Appellate Procedure
4(a)(6) overrides Federal Rule of Appellate Procedure 60(b).” As there is no
Appellate Rule 60(b), we assume he meant Rule 60(b) of the Federal Rules of
Civil Procedure. He does not raise this issue in his opening brief, so it is not
necessary to reach the merits of this claim, but we note that we already resolved
this issue in Clark v. Lavallie, 204 F.3d 1038 (10th Cir. 2000) (holding that Civil
Rule 60(b) relief was not available to pro se plaintiffs who did not comply with
Appellate Rule 4(a)(6)).

                                              -3-
“nothing within Rule 4(a)(6) indicates it is permissive or that its limitations may

be waived for equitable reasons. The 180-day limitation . . . is specific and

unequivocal.”   Clark v. Lavallie , 204 F.3d 1038, 1040 (10th Cir. 2000).

      Even if we were to consider equitable tolling, the motion would have been

denied for failure to file the motion within seven days of receiving notice of the

judgment. The district court found that “more than seven days ha[d] passed since

Petitioner received notice of the entry of judgment.” Dist. Ct. Order at 2. And

Stringer does not challenge this finding on appeal. Thus, it would have been

improper for the district court to grant Stringer’s motion.

                                  CONCLUSION

      Accordingly, we DENY Stringer’s application for a COA and DISMISS his

appeal. His motion to proceed in forma pauperis is DENIED.


                                               Entered for the Court

                                               Timothy M. Tymkovich
                                               Circuit Judge




                                         -4-
