* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions 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 appellate record, this panel

has determined unanimously that oral argument would not 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 oral argument.

Petitioner Terry Abbott, a Colorado state prison inmate 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) responding to 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 corpus under 28 U.S.C.

§ 2254. The petition did not demonstrate that it was filed within the applicable

statute of limitations. Therefore, on September 17, 1999, the district court

ordered him to show cause within thirty days why his 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 habeas petition for failure to show

cause. On November 10, 1999, Mr. Abbott filed a motion for leave to respond to

the show cause order out of time. The district court denied that motion on

November 22, 1999. On January 18, 2000, Mr. Abbott requested 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, 2000. Thereafter, on March 2,

2000, Mr. Abbott filed a motion for a certificate of 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 filing a notice of appeal if a

request for an extension is filed within thirty days 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 the district court’s November 1,

1999 order dismissing the habeas petition because no 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 jurisdiction 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 constitutional 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 this 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 outside the time limits of Rule 4(a)(5). 

Mr. Abbott wished to appeal from the November 1, 1999 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 permitted 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 toll 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 file a notice of appeal. 

The request for issuance of a certificate of appealability is DENIED and the

appeal is DISMISSED. The mandate shall issue forthwith.

Entered for the Court

Wade Brorby 

Circuit Judge