* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral 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 

### FEB 2 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MICHAEL BATTEN, Petitioner-Appellant,

v. LARRY FIELDS; ATTORNEY GENERAL OF THE STATE OF OKLAHOMA, Respondents-Appellees. No. 98-6326 (W. District of Oklahoma) (D.C. No. 96-CV-1164)

ORDER AND JUDGMENT *

Before TACHA , McKAY, and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is 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). T he case is therefore ordered submitted without oral argument.1 Batten’s notice of appeal was actually received in the district court on

August 5, 1998. Nevertheless, because Batten “cert ified” that his notice of appeal was placed in the prison mail system on July 31 st , the district court treated the notice of appeal as filed on the 31 st

. See Houston v. Lack, 487 U.S. 266, 275 (1988) (holding that a pro se prisoner’s notice of appeal is filed at the momentit is delivered to prison authorities for forwarding t o the district court). It should be noted, however, that this distinction is irrelevantto the determination of this particular appeal. -2- The procedural history surrounding this appeal is i mportant. On July 19, 1996, petitioner Michael S. Batten filed a pro se petition pursuant to 28 U.S.C. § 2254 challenging his 1992 Oklahoma convictions on c onstitutional grounds. On March 12, 1997, a magistrate judge issued a Report and Recommendation (“R&R”), recommending that Batten’s petition be den ied. Upon de novo review of those portions of the R&R objected to by Batten, the district court adopted the R&R and denied the petition on August 4, 1997. On July 31, 1998, almost one year later, Batten filed a notice of appeal. 1 On August 19, 1998, this court issued a show-cause order, ordering the parties to respondto the following question: “Whether the [July 31, 1998] notice of appeal was t imely filed 30 days after entry of the district court’s August 4, 1997 Judgment or was it filed nearly 11 months late?” In response to this order, Batten filed in the district court a Motion for Exception to File Out-of-Time Appeal. The districtcourt denied the motion on September 28, 1998, holding as follows:

Petitioner has filed a Motion for Exception to File Out-ofTime Appeal, requesting that this Court grant him p ermission to file2 The district court erred in calculating the 180-day time frame from the

filing of the judgment. The January 1, 1998, cut-o ff date adopted by the district court is only 150 days from the entry of the August4, 1997, judgment. The appropriate cut-off date is January 31, 1998. Beca use Batten filed his motion for extension on August 12, 1998, well after the propercut-off date, the district court’s computational error is irrelevant to this c ourt’s disposition of this appeal. -3- a late appeal because he did not receive a copy of this Court’s August 4, 1997, Judgment denying habeas relief until July 23, 1998. In support of his motion, he asserts that he notified the Court on September 9, 1997, of a change of address, and noti fied the Court on December 9, 1997, of a second change of address. Pursuant to Fed. R. App. P. Rules 3 and 4(a)(1), an appeal must be filed within [30] days of the date of entry of the judgment. In the instant case, this would have been October 3 , 1997. Pursuant to Fed. R. App. P. Rule 4(a)(6), the Court may gran t an extension of 14 days to file a notice of appeal if the petitione r did not receive notice of the entry of judgment within 21 days of i ts entry, and no party would be prejudiced. However, the petitioneralso must have filed a motion within 180 days of judgment or withi n seven days of the receipt of the notice of judgment, whichever is earlier. Fed. R. App. P. Rule 4(a)(6). Petitioner acknowledges thathe “first knew of the denial” on November 7, 1997. Thus, he had unti l the earliest date of November 14, 1997 (seven days from date he recei ved notice of entry of judgment) or January 1, 1998 (180 days fro m the entry of judgment) 2 to file the notice of intent to appeal. In the in stant case, the earlier date is November 14, 1997. However, ev en assuming Petitioner did not receive notice of the judgment a s contemplated by Rule 4(a)(6) until July 23, 1998 [the date Batten r eceived an actual copy of the judgment denying habeas relief], the ou ter time limit of 180 days expired on January 1, 1998, and thus his N otice of Intent of Appeal, filed in this Court on August 5, 1998, and allegedly mailed on July 31, 1998, is untimely. Accordingly, Petiti oner’s motion requesting an out-of-time appeal is DENIED. Finally, in response to the district court’s order, Batten filed a pro se brief in this court on October 13, 1998, arguing both the merits of his underlying habeas-4-

appeal and the propriety of the district court’s de nial of his motion to file an outof-time appeal. In light of this procedural history, it is clear th at this court lacks jurisdiction to review the district court’s August 4, 1997, Judgment denying Batten’s § 2254 petition. The thirty-day deadline for the timely filing of a notice of appeal under Fed. R. App. P. 4(a)(1) expired on September 3, 1997. Batten’s notice of appeal was filed in the district court on July 31, 1998, many months beyond the thirty-day deadline. The “taking of an appeal within the prescribed time is mandatory and jurisdictional.” Budinich v. Becton Dickinson & Co. , 486 U.S. 196, 203 (1988). Furthermore, this court “lac ks discretion to consider the merits of a case over which it is without jurisdict ion.” Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 379-80 (1981). Inasmuch as Batten did not file his notice of appeal until almost one year after the di strict court’s Judgment in this case, this court is without jurisdiction over the m erits of the denial of Batten’s § 2254 petition. See Ogden v. San Juan County , 32 F.3d 452, 455 (10 thCir. 1994) (holding that pro se appellants must comply with the requirements of th e Federal Rules of Appellate Procedure that govern all litiga nts). This court’s conclusion that it is without jurisdic tion to review the merits of the denial of Batten’s § 2254 petition does not end the inquiry. As noted above, Batten filed in the district court a motion for ord er granting an exception to file-5-

an out-of-time brief pursuant to Fed. R. App. P. 4( a)(6) on August 12, 1998. The district court denied Batten’s Rule 4(a)(6) motion by written order on September 28, 1998. On October 13 th , within thirty days of the entry of the district c ourt order denying Batten’s Rule 4(a)(6) motion, Batten filed a brief in this court which discusses the denial of the Rule 4(a)(6) moti on. Treating that brief as the functional equivalent of a notice of appeal, see Smith v. Barry , 502 U.S. 244, 248- 49 (1992), this court has jurisdiction over the dis trict court’s September 28, 1998, Order denying Batten’s Rule 4(a)(6) motion. Upon r eview of the parties’ briefs and contentions on appeal and the district court’s September 28 thOrder, this court finds no reversible error and affirms for substanti ally those reasons set out in the September 28 thOrder. For those reasons set out above, Batten’s appeal of the district court’s August 4, 1997, denial of Batten’s § 2254 petition is DISMISSED for lack of appellate jurisdiction. The district court’s denia l of Batten’s Rule 4(a)(6) motion is AFFIRMED

. ENTERED FOR THE COURT:

Michael R. Murphy Circuit Judge