* This order is not binding precedent, except underthe doctrines of law of

the case, res judicata, and collateral estoppel. T he court generally disfavors the citation of orders; nevertheless, an order may be c ited under the terms and conditions of 10th Cir. R. 36.3.

** After examining the briefs and the appellate reco rd, this three-judge panel has determined unanimously that oral argumentwould 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 su bmitted without oral argument. 

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

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

TENTH CIRCUIT

OLIVER T. STRINGER,

Petitioner-Appellant, No. 05-6238

v. (W.D. of Okla.) ERIC FRANKLIN, Warden, James Crabtree Correctional Center,

Respondent-Appellee. (D.C. No. CV-03-1337-C)

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 C OA and DISMISS the appeal.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 afte r the date when its order to reopen is entered, but only if all the fol lowing 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 d ays after entry; (B) the motion is filed within 180 days after the judgm ent or order is entered or within 7 days after the moving party rec eives 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 prej udiced.

-2- BACKGROUND Stringer sought a writ of habeas corpus in the West ern District of Oklahoma, pursuant to 28 U.S.C. § 2254. The distri ct court denied that petition on the merits on July 27, 2004, but Stringer did no t appeal the denial to this court until April 11, 2005. At that time, we dismissed h is appeal as untimely. Stringer subsequently filed a motion with the distr ict 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 groun ds that Stringer’s motion did not meet the time requirements under Rul e 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 e rred in denying the motion2In 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 Procedu re 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 h is 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 Civi l Rule 60(b) relief was not available to pro se plaintiffs who did not comply with Appellate Rule 4(a)(6)). -3- under Rule 4(a)(6) and asks for a COA to bring this appeal. 2We 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). Th is means that he must demonstrate “that reasonable jurists could debate w hether (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 encourag ement to proceed further.’” Slack v. McDaniel , 529 U.S. 473, 484 (2000). Here, reasonable jurists could not debate whether h is Rule 4(a)(6) motion was appropriate. Rule 4(a)(6) permits the districtcourt to “reopen the time to file an appeal” if three conditions are satisfied, one o f which is that “the motion is filed within 180 days after the judgment or order i s 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 clai ms he did not receive notice of the judgment for almost ten months after it was ent ered, essentially asking the court to equitably toll the 180-day limitation. Ho wever, it is clearly settled that-4-

“nothing within Rule 4(a)(6) indicates it is permis sive or that its limitations may be waived for equitable reasons. The 180-day limit ation . . . 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 C OA and DISMISS his appeal. His motion to proceed in forma pauperis is DENIED.

Entered for the Court Timothy M. Tymkovich Circuit Judge