FILED

United States Court of Appeals

Tenth Circuit

May 20, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

ANDREW J. LARSON,

 Petitioner - Appellant,

v.

EDDIE WILSON, State Penitentiary

Warden, Wyoming Department of

Corrections,

 Defendant - Appellee. 

No. 10-8041

(D.C. No. 2:09-CV-00109-WFD)

(D. of Wyoming)

ORDER

Before LUCERO, GORSUCH, and HOLMES, Circuit Judges.

The district court dismissed the state habeas application of Andrew J. Larson on

February 16, 2010 and entered a separate judgment order that same day. Any notice of

appeal from that order and judgment was due within 30 days thereof. Fed. R. App. P.

4(a)(1)(A). The notice of appeal therefore had to be filed no later than March 18, 2010.

In this instance, the document expressing Mr. Larson’s intent to appeal was not filed until

May 6, 2010, making it untimely.

After opening this appeal based on the filing of the notice of appeal, this court

issued a show cause order allowing Mr. Larson the opportunity to demonstrate any legal

basis for this court’s exercise of appellate jurisdiction. Mr. Larson subsequently filed a

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“Response to Court Order of May 10, 2010.” 

Mr. Larson first asserts in his response that his allegation of actual innocence

makes it unnecessary for him to comply with the law governing the timing requirements

for a notice of appeal. Mr. Larson cites no federal law in support of this assertion, nor

could he, as his statement is not a correct statement of the applicable law.

He further asserts that although the district court’s judgment was entered February

16, 2010, it was not mailed from the district court until March 30, 2010, and that he

signed the document in which he requested an appeal on April 24, 2010. He suggests that

his notice of intent to appeal should therefore be considered timely because April 24 is

within 30 days of March 30, and that he should be further given the benefit of the prison

mailbox rule, Fed. R. App. P. 4(c).

This argument must fail. There is no evidence that the district court’s judgment

was placed in the mail on March 30, 2010. Indeed, the district court’s docket and Fed. R.

Civ. P. 77(d) provide to the contrary, indicating that the judgment was sent on February

16, 2010 and that the time deadline for filing a notice of appeal must be based on that

date. 

But even if it was true that Mr. Larson did not receive the district court’s judgment

until April 1, 2010, as he asserts, he still has cited no basis for allowing this court to

consider his notice of appeal as being timely filed. Federal Rule of Appellate Procedure

4(a)(6) expressly states what must be done in the district court to protect a litigant’s

appellate rights if the litigant does not receive notice of a district court judgment within

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21 days of the judgment. Mr. Larson did not avail himself of those procedures within 14

days of receiving notice of the district court’s judgment. See Fed. R. App. P. 4(a)(6)(B). 

 Although this court construes a pro se litigant’s pleadings liberally, “an

appellant’s pro se status does not excuse the obligation of any litigant to comply with the

fundamental requirements of the Federal Rules of Civil and Appellate Procedure.” 

Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994). Further, the United States

Supreme Court has held that in civil cases such as this, the failure to file a timely notice

of appeal deprives the circuit court of appellate jurisdiction and the appeal must be

dismissed. Bowles v. Russell, 127 S. Ct. 2360 (2007). 

For the foregoing reasons, this appeal must be and is dismissed. 

Entered for the Court

ELISABETH A. SHUMAKER

Clerk of Court

by:

Douglas E. Cressler

Chief Deputy Clerk

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