No. 1:17-CV-2937-LTB (D. Colo.)
BACHARACH, MURPHY, and MORITZ, Circuit Judges.
E. BACHARACH, CIRCUIT JUDGE
Victoria Wright seeks a certificate of appealability so that
she can appeal the dismissal of her application for habeas
relief. Underlying the desired appeal is the scope of a
district court's discretion to dismiss an action based on
the claimant's failure to timely comply with a court
Wright is a state prisoner who filed an application for
habeas relief. She could pursue the application only by
prepaying the filing fee or obtaining leave to proceed in
forma pauperis; Ms. Wright opted to move in district court
for leave to proceed in forma pauperis.
her motion, Ms. Wright submitted an institutional account
statement reflecting transactions from February 2011 to
August 2017. But Ms. Wright filed the habeas application over
four months after the latest of these transactions. Thus, the
district court sent Ms. Wright an order directing her to
submit an account statement showing the current balance in
her institutional account. In this order, the court stated
that a failure to submit the account statement within thirty
days would result in dismissal of the action without further
Wright was transferred to another prison, so the court sent
the order to her again on January 10, 2018, restarting the
thirty-day period. The court warned her again that failure to
comply within thirty days would result in dismissal of the
action without further notice. After thirty days passed
without a response, the district court dismissed Ms.
Wright's application for habeas relief. Afterward, Ms.
Wright submitted a response. But the district court declined
to consider the response because it was untimely.
Wright challenges this ruling, arguing that her response was
timely because she had mailed it within thirty days of her
receipt of the order. In our view, however, no reasonable
jurist would credit this argument because Ms. Wright needed
to comply within thirty days of the date that the order had
been issued, not received.
grant a certificate of appealability only if the district
court's dismissal is subject to reasonable debate.
Slack v. McDaniel, 529 U.S. 473, 484 (2000). To
decide if the dismissal is reasonably debatable, we conduct a
preliminary review of Ms. Wright's argument based on what
she would ultimately need to show a merits panel. See
Buck v. Davis, 137 S.Ct. 759, 774 (2017). Here the
required showing would entail an abuse of discretion.
AdvantEdge Bus. Grp., L.L.C. v. Thomas E. Mestmaker &
Assocs., Inc., 552 F.3d 1233, 1236 (10th Cir. 2009).
reasonable jurist would view the district court's ruling
as an abuse of discretion. As the court reasoned, Ms.
Wright's response was untimely under any conceivable
counting rules. On January 10, 2018, the district court
ordered compliance within "thirty (30) days from the
date of this minute order." Minute Order at 1,
Wright v. Long, No. 17-cv-02937-GPG (D. Colo. Jan.
10, 2018), ECF No. 14 (emphasis omitted). Under this order,
the last day to respond was February 9, 2018. Ms. Wright put
her response in the mail five days after the 30-day deadline.
Therefore, any reasonable jurist would consider her response
Wright argues that she had 30 days from the day that she
received the order. If she were right, the 30-day period
would have started on January 15 rather than January 10. But
the order set its deadline "thirty (30) days from the
date of this minute order," not from the date of receipt
of the minute order. Id. In light of the wording in
the order, all reasonable jurists would consider Ms.
Wright's response untimely. See In re Armstrong,
99 Fed.Appx. 866, 868-69 (10th Cir. 2004) (unpublished)
(rejecting as untimely a filing because the filer had five
days from the order's date of filing rather than
Wright invokes the prison mailbox rule. This rule provides
some leeway for inmate filings, but it does not affect the
start of the thirty-day period. Under the rule, inmate
filings can be timely if they are "given to prison
officials for mailing prior to the filing
deadline" even if the court receives the filings
after the deadline. Price v. Philpot, 420 F.3d 1158,
1164 (10th Cir. 2005) (emphasis added). The prison mailbox
rule does not affect the start date when the court gives a
prisoner a certain number of days to file something. Cf.
Jenkins v. Burtzloff, 69 F.3d 460, 461-62 (10th Cir.
1995) (holding that the prison mailbox rule does not apply to
the start of the period for filing a notice of appeal).
the prison mailbox rule is facially inapplicable, no
reasonable jurist could consider the ruling an abuse of
discretion. As a result, we decline to issue a certificate of
appealability. In the absence of a certificate, we must also
dismiss the appeal. See 28 U.S.C. §
addition to the dismissal, however, we must decide whether to
grant Ms. Wright's motion for leave to proceed in forma
pauperis. Granting this motion would relieve Ms. Wright of
her obligation to prepay the filing fee for the appeal. This
time, she has provided an updated account statement, which
shows an inability to prepay the ...