UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

JOSE ALEMAR, 

 Petitioner - Appellant, 

v. 

THE PEOPLE OF THE STATE OF 

COLORADO; THE ATTORNEY 

GENERAL OF THE STATE OF 

COLORADO, 

 Respondents - Appellees. 

No. 17-1335 

(D.C. No. 1:16-CV-02622-LTB) 

(D. Colo.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before LUCERO, BALDOCK, and MORITZ, Circuit Judges. 

_________________________________ 

Jose Alemar, a state-court prisoner proceeding pro se,1

 appeals the district 

court’s dismissal of his application for a writ of habeas corpus under 28 U.S.C. 

§ 2254. We dismiss the appeal for lack of jurisdiction. 

 *

 After examining the appellant’s brief and the appellate record, this panel has 

determined unanimously that oral argument wouldn’t materially assist in 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. This order and judgment 

isn’t binding precedent, except under the doctrines of law of the case, res judicata, 

and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. 

App. P. 32.1; 10th Cir. R. 32.1. 

1

 We liberally construe pro se pleadings. But we won’t act as Alemar’s 

advocate. See James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013). 

FILED 

United States Court of Appeals 

Tenth Circuit 

January 25, 2018

Elisabeth A. Shumaker 

Clerk of Court
2 

Alemar pleaded guilty to sexual assault on a child, and on June 30, 2011, the 

state court sentenced him to two years to life in prison. On October 20, 2016, Alemar 

filed a § 2254 motion. On July 5, 2017, the district court denied Alemar’s motion as 

untimely and dismissed the action. It also declined to issue Alemar a certificate of 

appealability and denied his request for leave to proceed in forma pauperis (IFP) on 

appeal. 

On August 30, 2017, Alemar filed a motion seeking more time to file his 

notice of appeal. The district court denied that motion two days later. On September 

20, Alemar filed another motion, this time requesting permission to appeal. We 

construed that motion as Alemar’s notice of appeal and issued a jurisdictional showcause order, requiring Alemar to demonstrate that his notice of appeal was timely. 

When Alemar failed to timely respond to that show-cause order, we dismissed his 

appeal for lack of prosecution pursuant to Tenth Circuit Rule 42.1. But Alemar 

eventually filed a response, so we reinstated his appeal and referred the jurisdictional 

issue to this panel. 

“We acquire jurisdiction only on the filing of a timely notice of appeal.” 

Watkins v. Leyba, 543 F.3d 624, 626 (10th Cir. 2008). Federal Rule of Appellate 

Procedure 4(a)(1)(A) provides in pertinent part that an appellant must file a notice of 

appeal “within 30 days after entry of the judgment or order appealed from.” A district 

court may grant an extension of time to file a notice of appeal if an appellant (1) files 

a request “no later than 30 days after the time prescribed by [Rule 4(a)(1)(A)] 
3 

expires” and (2) “shows excusable neglect or good cause.” Fed. R. App. P. 

4(a)(5)(A). 

Here, the district court entered judgment on July 5. Thus, Alemar’s notice of 

appeal was due on August 4, and any motions for an extension of time were due 30 

days after that, or by September 4.2 See Fed. R. App. P. 4(a). Alemar did file a timely 

motion for an extension of time on August 30. But the district court denied it. And 

that makes Alemar’s September 20 notice of appeal—which he filed well past the 

August 4 deadline—untimely. See Goldwyn v. Donahoe, 562 F. App’x 655, 658 (10th 

Cir. 2014) (unpublished) (dismissing appeal for lack of jurisdiction under Rule 

4(a)(1)(B) where appellant filed timely request for extension of time but district court 

denied that request). 

Alemar resists this conclusion. First, he points out that he sent a letter to the 

district court on August 15. And he asserts that the district court interpreted that letter 

as a notice of appeal. But even if we were to interpret the August 15 letter as a notice 

of appeal, it would be untimely because Alemar sent it after the August 4 deadline. 

Thus, we reject this argument. 

Alternatively, Alemar argues that even if he failed to file a timely notice of 

appeal, we should retain jurisdiction because he suffers from several health problems 

that make it difficult for him to complete his legal work. But we “have ‘no authority 

to create equitable exceptions to jurisdictional requirements.’” Watkins, 543 F.3d at 

 2

 The 30th day actually fell on Sunday, September 3. But under Federal Rule 

of Appellate Procedure 26(a)(1)(C), Alemar had until the following weekday—

Monday, September 4—to file any motion for an extension. 
4 

627 (quoting Bowles v. Russell, 551 U.S. 205, 214 (2007)). Thus, because Alemar’s 

notice of appeal is untimely, we dismiss his appeal for lack of jurisdiction. See id.

(dismissing for lack of jurisdiction based on appellant’s failure to file timely notice 

of appeal). 

Finally, we deny Alemar’s motion to proceed IFP because he fails to present a 

nonfrivolous argument on appeal. See Lister v. Dep’t of Treasury, 408 F.3d 1309, 

1312 (10th Cir. 2005) (“[I]n order to succeed on a motion to proceed IFP, the movant 

must show a financial inability to pay the required filing fees, as well as the existence 

of a reasoned, nonfrivolous argument on the law and facts in support of the issues 

raised in the action.”). 

Entered for the Court 

Nancy L. Moritz 

Circuit Judge