* This order and judgment is not binding precedent, e xcept under the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

### NOV 16 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

TERRY ABBOTT,

Petitioner-Appellant,

v. JOHN SOUTHERS and ATTORNEY GENERAL FOR THE STATE OF COLORADO,

Respondents-Appellees. No. 00-1089 (D.C. No. 99-Z-1558) (D. Colo.)

ORDER AND JUDGMENT *

Before BRORBY , KELLY , and LUCERO , Circuit Judges.

After examining the appellant’s brief and the appel late record, this panel has determined unanimously that oral argument wouldnot 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 ora l argument. Petitioner Terry Abbott, a Colorado state prison in mate proceeding pro se,-2-

seeks a certificate of appealability to appeal the district court’s orders denying his requests to extend the deadlines for (1) respondingto a show cause order and (2) filing a notice of appeal. Because we conclude Mr. Abbott failed to satisfy the requirements of Fed. R. App. P. 4(a), we deny a certificate of appealability and dismiss the appeal. Mr. Abbott filed a petition for a writ of habeas co rpus under 28 U.S.C. § 2254. The petition did not demonstrate that it w as filed within the applicable statute of limitations. Therefore, on September 17 , 1999, the district court ordered him to show cause within thirty days why hi s petition should not be dismissed. Thirty days passed, but Mr. Abbott did not respond. On November 1, 1999, the district court dismissed Mr. Abbott’s hab eas petition for failure to show cause. On November 10, 1999, Mr. Abbott filed a mo tion for leave to respond to the show cause order out of time. The district cou rt denied that motion on November 22, 1999. On January 18, 2000, Mr. Abbottrequested an extension of time to file a notice of appeal and a motion for a certificate of appealability. The district court denied that request on February 3, 2 000. Thereafter, on March 2, 2000, Mr. Abbott filed a motion for a certificate o f appealability, which the district court treated as a notice of appeal from the February 3 order. Rule 4 of the Federal Rules of Appellate Procedure dictates which of the district court’s orders we may review on appeal. Rule 4(a)(1) requires a notice of-3-

appeal to be filed within thirty days of the order being appealed. Rule 4(a)(5) permits the district court to extend the time for f iling a notice of appeal if a request for an extension is filed within thirty day s after the original thirty-day period. Here, Mr. Abbott filed a timely notice of appeal from only the February 3 order denying leave to file a late notice of appeal and a motion for certificate of appealability. We do not have jurisdiction over th e district court’s November 1, 1999 order dismissing the habeas petition because n o notice of appeal was filed within thirty days, and no extension was requested within sixty days of the order. See Smith v. Barry , 502 U.S. 244, 245 (1992) (“Rule 3 of the Federal Rules of Appellate Procedure conditions federal appellate ju risdiction on the filing of a timely notice of appeal.”); Fed. R. App. P. 4(a)(1) , (5). Accordingly, we may not reach the merits of Mr. Abbott’s habeas claims. In order to obtain a certificate of appealability, Mr. Abbott must make a “substantial showing of the denial of a constitutio nal right.” 28 U.S.C. § 2253(c)(2). A district court’s decision to deny an extension of time to file a notice of appeal is ordinarily reviewed for an abuse of discretion. Ogden v. San Juan County , 32 F.3d 452, 455 (10th Cir. 1994). Therefore, Mr . Abbott must make a substantial showing that the district court in th is habeas case abused its discretion in denying his motion for an extension of time. See Greenawalt v. Stewart , 105 F.3d 1268, 1276 (9th Cir.1997).-4-

The district court denied Mr. Abbott’s request for an extension of time to file a notice of appeal because it was filed outsid e the time limits of Rule 4(a)(5). Mr. Abbott wished to appeal from the November 1, 19 99 dismissal of his habeas petition. His request for a late notice of appeal was filed January 18, 2000, more than sixty days later, beyond the maximum time perm itted by Rule 4(a)(5). Mr. Abbott’s November 10, 1999 motion for leave to respond to the show cause order out of time, denied on November 22, did not t oll the time to request an extension for the notice of appeal, because it did not qualify as a tolling motion under Rule 4(a)(4). Accordingly, the district court did not abuse its discretion in denying the request for an extension of time to fil e a notice of appeal. The request for issuance of a certificate of appeal ability is DENIED and the appeal is DISMISSED. The mandate shall issue forthwith.

Entered for the Court

Wade Brorby Circuit Judge