* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### SEP 29 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. No. 99-3070 MARLIN A. SIMPSON, Defendant-Appellant. (D.C. No. 97-CV-3457-WEB) (D.Kan.)

ORDER AND JUDGMENT *

Before ANDERSON, KELLY and BRISCOE, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Defendant Marlin Simpson, appearing pro se, seeks acertificate of appealability to appeal the district court’s denial of his motion for leave to file a notice of appeal out of time. Because we conclude Simpson failed to satisfy the-2-

requirements of Fed. R. App. P. 4(a)(6), we deny Si mpson a certificate of appealability and dismiss the appeal. Simpson was convicted of possessing with intent to distribute crack cocaine and using or carrying a firearm during and in relat ion to the drug trafficking offense, and was sentenced to a term of 228 months’ imprisonment. On direct appeal, this court affirmed the possession count but reversed and remanded for new trial on the firearm count. United States v. Simpson , 94 F.3d 1373 (10th Cir. 1996). On remand, the government chose to dismiss the firearm count and Simpson was resentenced to a term of 168 months’ imprisonment on the possession count. Simpson subsequently filed a 28 U.S.C. § 2255 motio n to vacate his sentence, which was denied on August 4, 1998. Alth ough a copy of the order was presumably mailed to Simpson, he allegedly did not receive it. On November 13, 1998, Simpson notified the clerk of the district co urt of a change of address and requested that he be updated regarding the status o f his § 2255 motion. In accordance with his request, the clerk’s office mai led a copy of the order denying his § 2255 motion to his new address. After receiv ing the copy of the order, Simpson filed a motion for leave to file a notice o f appeal out of time, which was denied. Simpson has now filed a notice of appeal f rom the district court’s order refusing an extension of time to appeal the denial of his § 2255 motion. We1 Because the sixty days actually expired on Saturd ay, October 3, 1998,

Simpson had until the following Monday, October 5, 1998, to file a timely notice of appeal. See Fed. R. Civ. P. 6(a). -3- construe Simpson’s notice of appeal as a request fo r a certificate of appealability. Fed. R. App. P. 22(b)(2). In order to obtain a certificate of appealability, Simpson must make a “substantial showing of the denial of a constitutio nal right.” 28 U.S.C. § 2253(c)(2). Because we ordinarily review a distr ict court’s decision of whether to grant a motion for extension of time to file a n otice of appeal for abuse of discretion, Ogden v. San Juan County , 32 F.3d 452, 455 (10th Cir. 1994), Simpson must, at a minimum, make a substantial show ing that the district court in this case abused its discretion in denying his motion for extension of time. See Greenawalt v. Stewart , 105 F.3d 1268, 1276 (9th Cir. 1997). Under Federal Rule of Appellate Procedure 4(a)(1), Simpson had sixty days from the date of the district court’s judgment, or until October 5, 1998, 1 to file his notice of appeal. See Fed. R. App. 4(a)(1). As noted, however, Simpson allegedly did not receive a copy of the district co urt’s judgment prior to expiration of this sixty-day period. Accordingly, he sought to reopen the time in which to file a notice of appeal pursuant to Fed. R . App. 4(a)(6): 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:2 Because this date was earlier than 180 days from the date of the district

court’s order, it is the date with which Simpson ha d to comply under Rule 4(a)(6)(A).

3 Although Simpson’s motion was not received and fi led by the clerk of the district court until December 28, 1998, he actually mailed the motion from prison on December 19, 1998. For purposes of our analysis , we apply the “prisoner mailbox rule,” which treats the date Simpson placed his motion in the prison mailbox as the filing date. See Houston v. Lack , 487 U.S. 266 (1988). -4- (A) the motion is filed within 180 days after the judgment or order is entered or within 7 days afterthe moving party receives notice of the entry, whicheve r is earlier; (B) the court finds that the moving party was entit led to notice of the entry of the judgment or order soughtto be appealed but did not receive the notice from the di strict court or any party within 21 days after entry; and (C) the court finds that no party would be prejudic ed. Fed. R. App. P. 4(a)(6). After reviewing the record, it is apparent that Simpson failed to satisfy the time requirement of Rule 4(a)(6)(A). Although he r eceived a copy of the district court’s order on December 4, 1998, he did not act w ithin the seven days required by Rule 4(a)(6)(A). 2 Instead, he waited until December 19, 1998, to fi le his motion for leave to file a notice of appeal out of time. 3 Thus, the district court did not abuse its discretion in denying Simpson’s u ntimely motion. Simpson’s application for a certificate of appealab ility is DENIED and the appeal is DISMISSED. Entered for the Court-5- Mary Beck Briscoe Circuit Judge