Tony Preciliand Overton v. SCOTT CROW, Interim Director

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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TONY PRECILIAND OVERTON,
Petitioner - Appellant,
v.
SCOTT CROW, Interim Director,
Respondent - Appellee.
No. 20-6180
(D.C. No. 5:19-CV-00598-F)
(W.D. Okla.)
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ORDER
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Before BACHARACH, Circuit Judge, LUCERO, Senior Circuit Judge, and
MORITZ, Circuit Judge.
_________________________________
This appeal arises from convictions in an Oklahoma state court for
first-degree murder, first-degree burglary, and robbery with a dangerous
weapon. Petitioner Mr. Tony Precilian Overton sought habeas relief, and
the magistrate judge recommended denial of relief. Mr. Overton didn’t
object, and the district judge adopted the recommendation to deny habeas
relief. Mr. Overton wants to appeal.
I. Mr. Overton seeks leave to reopen the time to appeal.
But he waited too long. Over three months after expiration of the
deadline to appeal, Mr. Overton moved to reopen the time for appeal. He
FILED
United States Court of
Appeals
Tenth Circuit
April 26, 2021
Christopher M. Wolpert
Clerk of Court
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acknowledged notice of the magistrate judge’s report and recommendation.
But he stated that
• he had not known that he could appeal the district court’s
ruling,
• he could no longer get help from another inmate law clerk, who
had transferred to another facility, and
• he had only limited access to legal resources.
In the alternative to reopening the time for appeal, Mr. Overton asked for
an opportunity to object to the magistrate judge’s report and
recommendation.
II. The district court denies Mr. Overton’s motion to reopen.
The district court denied the request to reopen the time for appeal,
reasoning that Mr. Overton had not disputed notice of the order that he
wanted to appeal.
The district court also denied Mr. Overton’s alternative request to
allow objections to the magistrate judge’s report and recommendation,
reasoning that such objections amounted to a second or successive habeas
petition. See In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008).
III. We deny Mr. Overton’s applications for a certificate of
appealability and leave to object to the report and
recommendation.
Mr. Overton can appeal the district court’s denial of his request to
reopen only if he obtains a certificate of appealability. 28 U.S.C.
§ 2253(c)(1)(A). To obtain the certificate, Mr. Overton must show that
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jurists of reason could reasonably debate (1) the correctness of the denial
of the motion to reopen the time for appeal and (2) the merits of the
constitutional claims. See Dulworth v. Jones, 496 F.3d 1133, 1137–38
(10th Cir. 2007).
In his appellate brief, Mr. Overton
• denies earlier knowledge that he could appeal the denial of his
habeas petition and
• argues that the Covid-19 pandemic had deprived him of
assistance with legal research that would have informed him of
his appeal rights.
Mr. Overton has not justified a certificate of appealability. If a party
receives notice of an order or judgment within 21 days of entry, Federal
Rule of Appellate Procedure 4(a)(6) prevents an extension of the time to
appeal. See Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994).
Mr. Overton has acknowledged receipt of the required notice. So the
district court could not extend the time to file a notice of appeal.
Mr. Overton contends that he did not understand his appeal rights
and lacked access to legal assistance. But he needed to comply with the
same procedural requirements that apply to all litigants. Kay v. Bemis, 500
F.3d 1214, 1218 (10th Cir. 2007). For all litigants, there is “no latitude on
the clear and restrictive language of Rule 4(a)(6).” Clark v. Lavallie, 204
F.3d 1038, 1041 (10th Cir. 2000).
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We also reject Mr. Overton’s alternative request to object to the
magistrate judge’s report and recommendation. That request involves
merits-based challenges to his state–court convictions. The district court
has already addressed those challenges, so Mr. Overton cannot raise them
again now. See 28 U.S.C. § 2244(b)(1); In re Rains, 659 F.3d 1274, 1275
(10th Cir. 2011).
* * *
We decline to issue a certificate of appealability on Mr. Overton’s
challenge to the district court’s denial of his motion to reopen the time to
appeal, and we dismiss that matter. We construe Mr. Overton’s request to
submit objections to the magistrate’s report and recommendation as an
application for leave to file a second or successive habeas petition, and we
deny that application.
Though we dismiss the matter and deny the request for leave to
object to the report and recommendation, we note that Mr. Overton cannot
afford to prepay the filing fee. So we grant his motion for leave to proceed
in forma pauperis.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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