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    United States v. Brown, 10th Cir. (2011)

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    This document is an order from the United States Court of Appeals for the Tenth Circuit denying Mark Edward Brown's request for a Certificate of Appealability. The order summarizes that Brown was convicted of attempted armed robbery and using a firearm during an attempted robbery. After his convictions were affirmed and the Supreme Court denied his petition, Brown sought additional time to file a habeas petition under 28 U.S.C. § 2255 beyond the one-year deadline. The district court denied his request for an extension and Brown appealed. However, the appellate court finds that Brown has not made the required showing for a COA and denies his request.

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    United States v. Brown, 10th Cir. (2011)

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    This document is an order from the United States Court of Appeals for the Tenth Circuit denying Mark Edward Brown's request for a Certificate of Appealability. The order summarizes that Brown was convicted of attempted armed robbery and using a firearm during an attempted robbery. After his convictions were affirmed and the Supreme Court denied his petition, Brown sought additional time to file a habeas petition under 28 U.S.C. § 2255 beyond the one-year deadline. The district court denied his request for an extension and Brown appealed. However, the appellate court finds that Brown has not made the required showing for a COA and denies his request.

    Original Description:

    Filed: 2011-09-20 Precedential Status: Non-Precedential Docket: 11-6101

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    This document is an order from the United States Court of Appeals for the Tenth Circuit denying Mark Edward Brown's request for a Certificate of Appealability. The order summarizes that Brown was convicted of attempted armed robbery and using a firearm during an attempted robbery. After his convictions were affirmed and the Supreme Court denied his petition, Brown sought additional time to file a habeas petition under 28 U.S.C. § 2255 beyond the one-year deadline. The district court denied his request for an extension and Brown appealed. However, the appellate court finds that Brown has not made the required showing for a COA and denies his request.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    20 views4 pages

    United States v. Brown, 10th Cir. (2011)

    Uploaded by

    Scribd Government Docs
    This document is an order from the United States Court of Appeals for the Tenth Circuit denying Mark Edward Brown's request for a Certificate of Appealability. The order summarizes that Brown was convicted of attempted armed robbery and using a firearm during an attempted robbery. After his convictions were affirmed and the Supreme Court denied his petition, Brown sought additional time to file a habeas petition under 28 U.S.C. § 2255 beyond the one-year deadline. The district court denied his request for an extension and Brown appealed. However, the appellate court finds that Brown has not made the required showing for a COA and denies his request.

    Copyright:

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    of 4

    FILED

    United States Court of Appeals


    Tenth Circuit

    September 20, 2011


    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    Clerk of Court

    TENTH CIRCUIT

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,

    No. 11-6101

    v.

    (W.D. Oklahoma)

    MARK EDWARD BROWN,

    (D.C. No. 5:06-CR-00153-R-1)

    Defendant - Appellant.

    ORDER DENYING
    CERTIFICATE OF APPEALABILITY *

    Before LUCERO, ANDERSON, and GORSUCH, Circuit Judges.

    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist in the determination
    of this matter. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
    therefore ordered submitted without oral argument.
    Defendant and appellant Mark Edward Brown was convicted by a jury of
    attempted armed robbery and using a firearm during and in relation to an

    This order 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 10th Cir. R. 36.3.

    attempted robbery. Our court affirmed those convictions and the Supreme Court
    denied his petition for a writ of certiorari. United States v. Brown, 592 F.3d 1088
    (10th Cir. 2009), cert. denied, 130 S. Ct. 1917 (2010).
    Because his petition for a writ of certiorari to the Supreme Court was
    denied on March 22, 2010, Mr. Brown had one year (i.e., until March 22, 2011) to
    file his 28 U.S.C. 2255 petition to vacate, set aside or correct [his] sentence. 1
    On March 25, 2011, Mr. Brown filed a letter with the district court asking for
    additional time to file his 2255 petition, on the ground that the prison was on
    lockdown and he could therefore not finish his petition. 2 The district court
    denied his request, explaining that it lacked the statutory authority to extend the
    one-year deadline and, to the extent it had the power to toll the one-year time
    period, Mr. Browns letter did not show or even attempt to show that he met the
    requirements for obtaining a tolling of the limitation period.
    Ultimately, Mr. Brown never filed a 2255 motion. Instead, on April 14,
    2011, he filed a notice of appeal from the district courts order denying him an
    extension of time. The government has argued that we lack jurisdiction over this

    Pursuant to 28 U.S.C. 2255(f), a petition must be filed within one year of


    the date on which the judgment becomes final. A judgment becomes final on,
    inter alia, the date when the Supreme Court denies certiorari. United States v.
    Prows, 448 F.3d 1223, 1227 (10th Cir. 2006).
    2

    His handwritten letter was actually dated March 17, 2011, but it was not
    filed until March 25. Mr. Brown did not explain why the lockdown status
    prohibited him from completing and/or writing his petition.
    -2-

    purported appeal because Mr. Brown is appealing from a non-final order. 3


    Alternatively, the government argues that Mr. Brown must obtain a certificate of
    appealability (COA) in order to be able to appeal the district courts order.
    We could dismiss this appeal on either ground. Thus, even assuming we
    have jurisdiction over this appeal, Mr. Brown must obtain a COA before
    presenting a 2255 petition to our court. In order to obtain a COA, a prisoner
    must make a substantial showing of the denial of a constitutional right. 28
    U.S.C. 2253(c)(2). Furthermore, [w]hen the district court denies a habeas
    petition on procedural grounds without reaching the prisoners underlying
    constitutional claim, a COA should issue when the prisoner shows, at least, that
    jurists of reason would find it debatable whether the district court was correct in
    its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484 (2000). There is no
    debate on whether Mr. Browns request for an extension was timely filed, or
    whether that constituted a 2255 petition, or whether the district court erred in
    any procedural way in denying his request for an extension of time. 4

    The argument is that, rather than asking the district court for an extension,
    which it is unable to grant, a defendant must file a 2255 petition out of time
    and, in that filing, ask the court to excuse his lateness based upon the factors
    listed in 28 U.S.C. 2255(f)(1)-(4), or on the basis of equitable tolling.
    4

    Appellants motion to dismiss is denied as moot. The appellant has filed a


    reply brief which is untimely. It does not alter the result.
    -3-

    We accordingly DENY Mr. Brown a COA and DISMISS this matter.


    ENTERED FOR THE COURT

    Stephen H. Anderson
    Circuit Judge

    -4-

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