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    Rodney Keith Dick v. R. Michael Cody and Attorney General of The State of Oklahoma, 69 F.3d 547, 10th Cir. (1995)

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    1. The document discusses two appeals by Rodney Dick related to the denial of his petition for a writ of habeas corpus. 2. The district court denied Dick's habeas petition for failure to exhaust state remedies on one claim and failure to assert valid grounds on other claims. 3. Dick failed to file a timely notice of appeal of the denial and his subsequent motion for an extension of time to file the appeal was also denied by the district court.

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    Rodney Keith Dick v. R. Michael Cody and Attorney General of The State of Oklahoma, 69 F.3d 547, 10th Cir. (1995)

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    1. The document discusses two appeals by Rodney Dick related to the denial of his petition for a writ of habeas corpus. 2. The district court denied Dick's habeas petition for failure to exhaust state remedies on one claim and failure to assert valid grounds on other claims. 3. Dick failed to file a timely notice of appeal of the denial and his subsequent motion for an extension of time to file the appeal was also denied by the district court.

    Original Description:

    Filed: 1995-11-01 Precedential Status: Precedential Citations: 69 F.3d 547 Docket: 95-5012

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    Rodney Keith Dick v. R. Michael Cody and Attorney General of the State of Oklahoma, 69 F.3d 547, 10th Cir. (1995)

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    1. The document discusses two appeals by Rodney Dick related to the denial of his petition for a writ of habeas corpus. 2. The district court denied Dick's habeas petition for failure to exhaust state remedies on one claim and failure to assert valid grounds on other claims. 3. Dick failed to file a timely notice of appeal of the denial and his subsequent motion for an extension of time to file the appeal was also denied by the district court.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    36 views3 pages

    Rodney Keith Dick v. R. Michael Cody and Attorney General of The State of Oklahoma, 69 F.3d 547, 10th Cir. (1995)

    Uploaded by

    Scribd Government Docs
    1. The document discusses two appeals by Rodney Dick related to the denial of his petition for a writ of habeas corpus. 2. The district court denied Dick's habeas petition for failure to exhaust state remedies on one claim and failure to assert valid grounds on other claims. 3. Dick failed to file a timely notice of appeal of the denial and his subsequent motion for an extension of time to file the appeal was also denied by the district court.

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    of 3

    69 F.

    3d 547
    NOTICE: Although citation of unpublished opinions remains unfavored,
    unpublished opinions may now be cited if the opinion has persuasive value on a
    material issue, and a copy is attached to the citing document or, if cited in oral
    argument, copies are furnished to the Court and all parties. See General Order of
    November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
    further order.

    Rodney Keith DICK, Petitioner-Appellant,


    v.
    R. Michael CODY and Attorney General of the State of
    Oklahoma, Respondents-Appellees.
    Nos. 95-5012, 95-5047.

    United States Court of Appeals, Tenth Circuit.


    Nov. 1, 1995.

    ORDER AND JUDGMENT1


    Before MOORE, BARRETT and EBEL, Circuit Judges.
    MOORE, Circuit Judge.

    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination
    of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The cause is
    therefore ordered submitted without oral argument.

    We have joined two cases to facilitate disposition. Case number 95-5012 is a


    putative appeal from the denial of a petition for a writ of habeas corpus. Case
    number 95-5047 is an appeal from the denial of a motion for leave to appeal the
    habeas denial out of time.

    The district court dismissed appellant Dick's 2254 petition for failure to exhaust
    state remedies on the first claim and for failure to assert cognizable grounds for
    relief in his remaining claims.2 Mr. Dick failed to file a timely notice of appeal
    from that decision, but he nonetheless seeks review in this court.

    Ten days after the expiration of the time for perfecting his appeal had lapsed,
    Mr. Dick filed a motion under Fed. R.App. P. 4(a)(5) seeking an extension of
    time within which to file a notice of appeal. Mr. Dick claimed he failed to file a
    timely notice because after the judgment was entered he had been transferred to
    a different institution and was consequently without a law library or legal
    assistance. The district court examined the file and found Mr. Dick had filed a
    notice of his transfer before the entry of the judgment. The court concluded Mr.
    Dick's first contention was "unpersuasive." The court further held access to a
    law library or legal assistance was not required to file a notice of appeal. As a
    consequence, the court denied the motion.

    After the court's ruling, Mr. Dick filed a document denominated "Notice of
    Intent to Appeal/And Request for Certificate of Probable Cause." In that
    document, Mr. Dick asserted the district court erred because he had been
    transferred to a second institution after the entry of the court's order denying
    habeas corpus. He also asserted he needed access to a law library so he could
    make a sufficient showing to obtain a certificate of probable cause. This
    pleading was not addressed by the district court.

    Mr. Dick's relocations notwithstanding, he has never claimed he received the


    order of dismissal too late to file a timely notice of appeal. Moreover, his
    failure to do so moots his contention he had to have legal support for a
    certificate of probable cause. Without having timely filed a notice of appeal,
    Mr. Dick's need for a certificate of probable cause did not exist. Moreover, the
    persuasiveness of his contention is further burdened with the fact the certificate
    would have been obtainable in this court, had a timely notice of appeal been
    filed. 28 U.S.C. 2253.

    Our decision here is not arguable. We simply do not have jurisdiction over this
    untimely appeal. "[T]he taking of an appeal within the prescribed time is
    mandatory and jurisdictional." Budinich v. Becton Dickinson & Co, 486 U.S.
    196, 203 (1988). See also Browder v Director, Ill. Dep't of Corrections, 434
    U.S. 257, 264 (1978); Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368,
    379 (1981). The appeal in 95-5012 is therefore DISMISSED.

    The next case questions whether the district court properly denied Mr. Dick's
    attempt to gain relief under Fed. R.App. P. 4(a)(5) on the ground he failed to
    demonstrate excusable neglect. That judgment is reviewed for abuse of
    discretion. City of Chanute, Kan. v. Williams Nat'l Gas Co., 31 F.3d 1041,
    1045 (10th Cir.1994), cert. denied, 115 S.Ct. (1995). We believe Mr. Dick's
    bald assertion he was transferred to another institution pending the time for
    filing a notice of appeal is not a showing of excusable neglect. That move did

    not interfere with or delay his receipt of the district court order denying habeas
    relief. Moreover, because the notice of appeal must merely cite the party taking
    the appeal, the order appealed from, and the court to which the appeal is taken,
    Fed. R.App. P. 3(c), his assertion of need for legal research is unfounded.
    Therefore, we cannot conclude the district court's holding was an abuse of
    discretion.3 The judgment in 95-5047 is AFFIRMED.

    This order and judgment is not binding precedent, except under the doctrines of
    law of the case, res judicata, and collateral estoppel. The court generally
    disfavors the citation of orders and judgments; nevertheless, an order and
    judgment may be cited under the terms and conditions of the court's General
    Order filed November 29, 1993. 151 F.R.D. 470

    The ruling was predicated upon Mr. Dick's concurrent state court appeal and
    the assertion of errors in the application of state law

    These circumstances notwithstanding, we have examined the appeal of the


    habeas decision and see no error

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