*

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is

therefore 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.

FILED

United States Court of Appeals

Tenth Circuit

March 23, 2009

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JERRY LLOYD SEWARD,

Plaintiff-Appellant, No. 08-6047, 08-6081

v. Western District of Oklahoma

GENE CHRISTIANSON, District

Attorney; LEAH EDWARDS,

Assistant District Attorney; BILL

SMITH, Public Defender, 

Defendants-Appellees.

(D.C. No. 5:07-CV-00447-RJC)

ORDER AND JUDGMENT*

Before LUCERO, MURPHY and McCONNELL, Circuit Judges.

These are two consolidated pro se state prisoner civil rights appeals. Jerry

Seward filed a Federal Rule of Civil Procedure 60(b) motion for relief from

judgment, claiming he had newly discovered evidence which would require the
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district court to relieve him from its prior judgment and extend the time for

appeal. The district court construed this as a Federal Rule of Appellate Procedure

4(a)(6) motion to reopen the time to appeal. The court dismissed the motion. Mr.

Seward timely appeals this decision, as well as the denial of his motions to

proceed in forma pauperis and to amend his complaint. We review the district

court’s legal conclusions de novo and factual conclusions, if any, for clear error. 

United States v. Clark, 84 F.3d 378, 381 (10th Cir. 1996). 

First, Mr. Seward claims the district court’s order is invalid because the last

line reads “IT IS SO ORDERED this th [sic] day of January, 2008.” This line

presents two errors. Obviously, the court forgot to fill in the date. In addition,

the month listed is January though the order was issued in February. These

clerical errors can be corrected “at any time” under Fed. R. Crim. P. 36, and do

not affect the validity of an order or judgment. See Flanagan v. United States,

179 F.2d 703 (6th Cir. 1949) (holding that an incorrect date of judgment of

conviction for crime endorsed on judgment can be amended to show correct date

without invalidating judgment). 

Second, Mr. Seward claims that, even if the order is valid, the district court

erred in denying his Rule 60(b) motion. According to Mr. Seward, the state

impeded his access to records, and this should have the tolled the time he had to

file an appeal. However, in making this argument, Mr. Seward appears to be

complaining about his first appeal in 2007, which was dismissed as time barred. 
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In that appeal, this Court determined that the prison mailbox rule did not apply,

and as a result, Mr. Seward’s notice of appeal was filed more than sixty days late. 

See Seward v. Christianson, 07-6268 (10th Cir. Nov. 15, 2007) (unpublished). 

This appeal is from a second district court opinion, a different case involving the

same parties and the same facts. The second district court opinion did not address

the mailbox rule and dismissed his motion on procedural grounds, which Mr.

Seward fails to address in his brief.

The district court opinion applied Federal Rule of Appellate Procedure

4(a)(6) in determining whether Mr. Seward’s motion to extend the time to appeal

could be granted. Rule 4(a)(6) permits a court to reopen the time for appeal if

certain requirements are met; however, the district court found the requirements

unfulfilled. For relief to be granted, Rule 4(a)(6)(A) requires that “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.” Here, the district court’s judgment on dismissal was

entered on June 29, 2007. Mr. Seward filed a Motion for Reconsideration on July

6, 2007, showing that he had notice of the judgment within 21 days of its entry. 

Thus, the district court denied his motion.

Mr. Seward’s appellate challenges to the decision below are difficult to

follow. He claims his Due Process and Equal Protection rights have been violated

by the district court in this case, but then proceeds to bring up issues that we
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addressed in his first appeal. Though he claims he should have been entitled to an

evidentiary hearing in district court, Mr. Seward makes no mention of Federal

Rule of Appellate Procedure 4, upon which the entire district court opinion in this

case was based. He fails to show any reason why the district court order denying

his motion to extend the time to appeal was in error. Thus, the well-reasoned

district court order should be upheld.

The denial of Mr. Seward’s Fed. R. Civ. P. 60(b) motion is AFFIRMED. 

The district court’s denial of Mr. Seward’s motion to proceed in forma pauperis

and his motion to amend his complaint are likewise AFFIRMED. 

Entered for the Court, 

Michael W. McConnell

Circuit Judge