                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

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



 UNITED STATES OF AMERICA,

                 Plaintiff-Appellee,                      No. 09-5054
          v.                                    Northern District of Oklahoma
 EFREM ZEMBLISH HARRIS,                     (D.C. No. 4:02-CR-00088-CVE-1 and
                                                 4:05-CV-00143-CVE-SAJ)
                 Defendant-Appellant.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before LUCERO, MURPHY and McCONNELL, Circuit Judges.



      Efrem Zemblish Harris, a federal prisoner proceeding pro se, seeks a

certificate of appealability (COA) to appeal the district court’s denial of his

motion to reopen the time to file an appeal. Exercising jurisdiction pursuant to 28

U.S.C. §§ 1291 and 2253(c), we conclude that Mr. Harris has not made a

“substantial showing of the denial of a constitutional right.” We therefore deny

Mr. Harris’s 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       This order is not binding precedent, except under the doctrines of law of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.
                                    Background

      In 2005, Mr. Harris filed a § 2255 motion challenging his life sentence for

multiple drug offenses. After the district court denied his motion on June 14,

2006, Mr. Harris filed a timely Rule 59(e) motion to reconsider. That motion was

denied on June 28, 2006. Mr. Harris, however, contends that he never received

notice of the June 28 order until September 7, 2006, and then only after he had

inquired about its status with the court clerk. He filed an untimely appeal of the

June 28 order on September 20, 2006—twenty-three days past the sixty-day

deadline—and has been trying to overcome the timeliness bar in one way or

another ever since. [Dist. 2]

      Mr. Harris has been nothing if not persistent. His first appeal, filed

September 20, 2006, challenged the district court’s denial of his § 2255 and Rule

59(e) motions; we denied that appeal as untimely because it was not filed within

60 days of entry of judgment. United States v. Harris, No. 06-5189 (10th Cir.

Feb. 26, 2007) (unpublished order). [R. 51] On March 7, 2007, he then moved for

the district court to reopen the time to file an appeal pursuant to Fed. R. App. P.

4(a)(6). [Supp. R. 92] The district court denied his motion the next day, and he

did not appeal that denial. [Supp. R. 99] Shortly thereafter, Mr. Harris filed a

motion under Fed. R. Civ. P. 60(b)(1), seeking relief from the denial of his

4(a)(6) motion to reopen his appeal due to “excusable neglect.” [Supp. R. 109]

The district court denied that motion, and we denied COA, holding that “Rule

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60(b) may not be used to circumvent the time limits of Fed. R. App. P. 4(a)(6).”

United States v. Harris, No. 07-5053 (10th Cir. Aug. 24, 2007) (unpublished

order). [Supp. R. 114.] Mr. Harris then filed a substantially similar motion asking

the district court to relieve him from the time bar under Fed. R. Civ. P. 60(b)(4),

(5), and (6); the district court again denied his motion and we again denied his

request for COA. United States v. Harris, 284 Fed. App’x 558 (10th Cir. 2008).

      Undeterred, on March 30, 2009, Mr. Harris filed another motion to reopen

the time to appeal under Rule 4(a)(6). This motion repeated the arguments of the

March 2007 Rule 4(a)(6) motion, although it did characterize itself in part as a

motion to “Construe Defendant’s September 20, 2006 Late Notice as a Rule

4(a)(6) Motion Under the Federal Rules of Appellant [sic] Procedure.” United

States v. Harris, No. 02-CR-0088-CVE, 2009 WL 961535 at *1 (N.D. Okla. Apr.

7, 2009). The district court noted that Mr. Harris had “raised these same

arguments to the Court in a previous motion” in which the court had “found that

defendant had not satisfied any of the requirements of Rule 4(a)(6) and his motion

to reopen was untimely.” Id. at *2. Mr. Harris had “presented no authority to

support his argument that he may seek leave to reopen his time to appeal two and

a half years after filing an untimely appeal,” nor had he “shown that the Court has

the authority to reopen his time to appeal after an appeal of the same issue has

been dismissed by the appellate court.” Id. Even so, the court once again

addressed the merits of Mr. Harris’s motion and once again rejected it for two

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reasons. First, the court was not convinced that Mr. Harris had not in fact

received the order denying his Rule 59(e) motion in a timely manner, as the Court

Clerk had mailed him a copy of the opinion and order and the mail was not

returned as non-deliverable. Id. Second, even if the order was not mailed to him

until September 7, 2006, he still failed to file his notice of appeal until September

20, 2006, which exceeded the seven day window required by Rule 4(a)(6)(B). Id.

at *2. The district court later denied COA on the issue.

                                     Discussion

       The denial of a motion for relief under 28 U.S.C. § 2255 may be appealed

only if the district court or this Court first issues a COA. 28 U.S.C. §

2253(c)(1)(B). A COA will issue “only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To

make such a showing, a petitioner must demonstrate that “reasonable jurists could

debate whether . . . 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, 483–84 (2000) (internal quotation

marks omitted). When the district court’s denial is on procedural grounds, as it

was here, the petitioner must also show “that jurists of reason would find it

debatable whether the district court was correct in its procedural ruling.” Id. at

484.




                                          -4-
      We review the denial of a Rule 4(a)(6) motion for an abuse of discretion,

Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994), with particular

solicitude for the district court’s factual findings and credibility determinations.

Under the circumstances of this case, no jurist of reason would find that the

district court had abused its discretion. For one thing, the motion that Mr. Harris

has presently appealed is virtually identical to the Rule 4(a)(6) motion he filed on

March 7, 2007, which was denied. Mr. Harris might have changed the title of his

motion but the substantive argument remains the same. He never appealed that

earlier denial and the ruling is law of the case. Mr. Harris is not free perpetually

to relitigate final orders of the court, even on procedural issues.

      Even if the issue were not barred by law of the case, the district court

offered two well-founded justifications to deny the extension. While it

recognized that Mr. Harris contended he had never received the June 28 order, it

also noted that the Court Clerk had mailed a copy of that order the day it was

filed and that the order was never returned as undeliverable. [2009 WL 961535 at

*2] When “court records revealed that a copy of the order . . . had been sent to

[the defendant] and never returned as undeliverable,” there is no abuse of

discretion in finding that the defendant had received timely notice. Ogden, 32

F.3d at 455. Moreover, even if Mr. Harris had been able to show that notice was

not timely received, thereby satisfying Rule 4(a)(6)(A), he still could not show

that he satisfied Rule 4(a)(6)(B) by filing his motion for an extension within

                                          -5-
seven days of receiving notice. Mr. Harris himself admits he had received notice

by September 7, 2006, and yet his motion was not filed until September 20, 2006.

Recognizing that a September 20 filing date would be too late, Mr. Harris has

tried to avail himself of the “mailbox rule” of Fed. R. App. P. 4(c)(1), now

claiming that he mailed his motion from the federal prison within the seven-day

period. Alt. R. Br. 8. As he failed to provide a “declaration in compliance with

28 U.S.C. § 1746 or [] a notarized statement, either of which must set forth the

date of deposit and state that first-class postage has been prepaid,” Fed. R. App.

P. 4(c)(1), however, that rule does not apply.

      While timing deadlines might at times be frustrating, they are nonetheless

necessary, and the decision to grant extensions falls within the discretion of the

district court. Cf. Duffield v. Jackson, 545 F.3d 1234, 1240 (10th Cir. 2008). Mr.

Harris has challenged that court’s refusal to grant an extension too many times

already. He must accept the decision.

                                    Conclusion

      Accordingly, we DENY Mr. Harris’ request for a COA and DISMISS this

appeal.

                                                 Entered for the Court,

                                                 Michael W. McConnell
                                                 Circuit Judge




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