                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                               November 25, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT




    JERRY LEE MAYS,

                Plaintiff-Appellant,

    v.                                                   No. 09-5099
                                            (D.C. No. 4:09-CV-00241-CVE-FHM)
    TULSA COUNTY PUBLIC                                  (N.D. Okla.)
    DEFENDER’S OFFICE;
    RICHARD WILLIAM COUCH,

                Defendants-Appellees .


                             ORDER AND JUDGMENT *


Before KELLY, BALDOCK, and TYMKOVICH, Circuit Judges.



         Jerry Lee Mays, an Oklahoma state prisoner proceeding pro se, appeals the

district court’s judgment dismissing with prejudice his claims that his

constitutional rights were violated when he was convicted due to the ineffective

assistance of his public defender. He brought this action under 42 U.S.C. § 1983,


*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
alleging that he is factually innocent of the crimes for which he was convicted in

an Oklahoma state court, but he was nevertheless convicted due to his attorney’s

inadequate representation. He also requests leave to proceed in forma pauperis

(IFP) on appeal. We exercise jurisdiction under 28 U.S.C. § 1291. We deny

Mr. Mays’s request to proceed IFP because he has failed to present “a reasoned,

nonfrivolous argument on the law and facts in support of the issues raised on

appeal.” Watkins v. Leyba, 543 F.3d 624, 627 (10th Cir. 2008) (quotation

omitted). We conclude that this appeal is frivolous and therefore will be

dismissed.

                                     Background

      After Mr. Mays was charged in an Oklahoma state court with various

crimes, defendant Richard William Couch, a public defender, was appointed to

represent him. Following a jury trial, Mr. Mays was convicted of shooting with

intent to kill, possession of a firearm, and assault and battery, all after former

conviction of two or more felonies. His convictions were affirmed on direct

appeal, and his sentences were modified to two consecutive prison terms of thirty

years each.

      Mr. Mays then filed the underlying civil-rights action against his public

defender and the Tulsa County Public Defender’s Office. After evaluating the

complaint under the Prison Litigation Reform Act, 28 U.S.C. § 1915(e)(2)(B), the

district court dismissed the action with prejudice. The court held that the

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complaint failed to state a claim upon which relief may be granted because to

state a claim under § 1983, a plaintiff must allege a constitutional violation by a

state actor, and neither the public defender nor the Tulsa County Public

Defender’s Office was a state actor. Further, the district court counted the

dismissal as a first “prior occasion” or “strike,” under 28 U.S.C. § 1915(g).

               Appellate Jurisdiction and Scope of Appellate Review

      Before considering the merits of Mr. Mays’s appeal, we must determine

this court’s jurisdiction. We also clarify the scope of review. This court does not

have jurisdiction over an untimely appeal. See United States v.

Ceballos-Martinez, 387 F.3d 1140, 1143 (10th Cir. 2004).

      The district court entered judgment of dismissal on April 27, 2009. On

May 1, 2009, Mr. Mays filed a motion to reconsider. Because this motion was

filed within ten days of the judgment, it tolled the time to file a notice of appeal.

Fed. R. App. P. 4(a)(4)(A); see Price v. Philpot, 420 F.3d 1158, 1167 n.9

(10th Cir. 2005) (explaining the general practice to treat a motion to reconsider

filed within ten days of a judgment as a tolling motion under Fed. R. Civ.

P. 59(e)). The district court denied the motion to reconsider on May 6, 2009.

Accordingly, the deadline for filing a notice of appeal was June 5, 2009, see Rule

4(a)(1)(A), but Mr. Mays did not file a notice of appeal by that date. Instead, on

May 21, 2009, he filed a second motion to reconsider, which the district court




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construed as a motion filed under Fed. R. Civ. P. 60(b), and denied on June 1,

2009.

        Mr. Mays’s notice of appeal was filed with the district court on

July 2, 2009, one day past the deadline imposed by Rule 4(a)(1)(A). An inmate

confined in an institution may be entitled to the benefit of the prison-mailbox

rule, which provides that a notice of appeal “is timely if it is deposited in the

institution’s internal mail system on or before the last day for filing.”

Rule 4(c)(1). A prisoner invoking this rule may show timely filing “by a

declaration in compliance with 28 U.S.C. § 1746 or by a notarized statement.”

Rule 4(c)(1). Mr. Mays has submitted an affidavit signed under penalty of

perjury in substantial compliance with § 1746 stating that he placed the notice of

appeal in the mail on July 1, 2009. He attached a copy of the envelope showing a

July 1 postmark and sufficient postage. We conclude that Mr. Mays has shown

that his notice of appeal was timely and that this court has appellate jurisdiction.

        Our jurisdiction extends only to the order denying the Rule 60(b) motion,

however. The Rule 60(b) motion was filed more than ten days after the judgment,

so it did not toll the time to file a notice of appeal from the judgment. See

Allender v. Raytheon Aircraft Co., 439 F.3d 1236, 1241 (10th Cir. 2006).

Therefore, we review the order denying the Rule 60(b) motion.




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                                       Merits

      We review an order denying relief under Rule 60(b) for an abuse of

discretion, “keeping in mind that Rule 60(b) relief is extraordinary and may be

granted only in exceptional circumstances.” Butler v. Kempthorne, 532 F.3d

1108, 1110 (10th Cir. 2008) (quotation omitted), cert. denied, 129 S. Ct. 952

(2009). We liberally construe a pro se litigant’s pleadings, but we do not serve as

his “attorney in constructing arguments and searching the record.” Garrett v.

Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).

      In his Rule 60(b) motion, Mr. Mays challenged the district court’s

determination that defendants were not state actors within the meaning of § 1983.

He pursues this argument on appeal, although in this court he appears to limit his

claims to the Tulsa County Public Defender’s Office.

      Mr. Mays’s appellate arguments consist almost entirely of conclusory

statements claiming baldly that his complaint stated a claim upon which relief

may be granted. His appellate brief comes close to disentitling him to appellate

review for failure to include any reasoned argument challenging the district

court’s judgment or pertinent legal authority. See Garrett, 425 F.3d at 841

(holding that claim was waived on appeal where it was supported by “mere

conclusory allegations with no citations to the record or any legal authority for

support”); Wilburn v. Mid-South Health Dev., Inc., 343 F.3d 1274, 1281

(10th Cir. 2003) (“We . . . will not consider issues that are raised on appeal but

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not adequately addressed.”); Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679

(10th Cir. 1998) (“Arguments inadequately briefed in the opening brief are

waived[.]”); Fed. R. App. P. 28(a)(9)(A) (providing that an appellant’s brief must

contain “appellant’s contentions and the reasons for them, with citations to the

authorities and parts of the record on which the appellant relies”).

      Nevertheless, we have considered Mr. Mays’s argument that the district

court erred in holding that his public defender and the Tulsa County Public

Defender’s Office were not state actors for purposes of his § 1983 claims. We

find no abuse of discretion in the denial of Mr. Mays’s Rule 60(b) motion for

substantially the reasons stated in the district court’s opinion and order dated

April 27, 2009. Moreover, we determine that this appeal is frivolous, pursuant to

§ 1915(e)(2)(B)(i), because Mr. Mays “has failed to present any legal theory

which could conceivably refute the district court’s disposition.” Davis v. Kan.

Dep’t of Corr., 507 F.3d 1246, 1249 (10th Cir. 2007).

                                   Prior Occasion

      Having found this appeal to be frivolous and subject to dismissal under the

provisions of § 1915(e)(2)(B)(i), Mr. Mays is advised that the dismissal of this

appeal counts as a second “prior occasion” or “strike,” under § 1915(g). See

Davis, 507 F.3d at 1249 (holding that dismissals by district court and court of

appeals each count as a strike). Mr. Mays “is reminded that if he accrues three

strikes, he will no longer be able to proceed in forma pauperis in any civil action

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filed in a federal court unless he is in imminent danger of physical injury.”

Thompson v. Gibson, 289 F.3d 1218, 1223 (10th Cir. 2002) (citing § 1915(g)).

                                     Conclusion

      Mr. Mays’s request to proceed IFP on appeal is DENIED, and he is ordered

to immediately remit the unpaid balance of the filing fee. This appeal is

DISMISSED.


                                                     Entered for the Court



                                                     Paul J. Kelly, Jr.
                                                     Circuit Judge




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