David Brown v. MICHAEL A. JOHNSTON, Colonel

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
DAVID BROWN,
Petitioner - Appellant,
v.
MICHAEL A. JOHNSTON, Colonel,
Respondent - Appellee.
No. 22-3055
(D.C. No. 5:21-CV-03010-JWL)
(D. Kan.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before PHILLIPS, MURPHY, and EID, Circuit Judges.
_________________________________
David Brown, a federal prisoner proceeding pro se 1 and in forma pauperis,
appeals the denial of his 28 U.S.C. § 2241 petition and the denial of his petition for writ
of mandamus. We dismiss his appeal as untimely.
* After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially help determine this appeal. See
Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
1 Since Brown is a pro se litigant, we liberally construe his filings, Erickson v.
Pardus, 551 U.S. 89, 94 (2007), without acting as his advocate, Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991).
FILED
United States Court of Appeals
Tenth Circuit
July 1, 2022
Christopher M. Wolpert
Clerk of Court
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2
BACKGROUND
On January 8, 2021, Brown filed a § 2241 petition seeking relief from a court-
martial conviction. Brown argues he was denied due process in a Discipline and
Adjustment Board (“D&A Board”) proceeding at the United States Disciplinary
Barracks. Brown also filed a writ of mandamus asking the district court to order
Respondent to deliver his parole-eligibility documents to the Federal Bureau of Prisons
and to conduct his clemency hearing before the next scheduled date on the U.S. Parole
Commission’s docket.
On September 16, 2021, the district court denied the habeas petition and the writ
of mandamus. The court concluded that Brown had received adequate due process at his
D&A Board proceeding and that the D&A Board’s decision was supported by sufficient
evidence. It also concluded that Brown had not met his burden of proof for the mandamus
relief sought.
On December 10, 2021, Brown filed a motion for reconsideration under Federal
Rule of Civil Procedure 60(b). On February 7, 2022, the district court denied the motion.
He then filed a second motion for reconsideration, which was denied on February 28,
2022. On March 11, 2022, Brown simultaneously appealed the final judgment and the
denial of his first motion for reconsideration.2
2 Brown does not appeal the denial of his second motion for reconsideration.
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3
DISCUSSION
At issue is the timeliness of Brown’s notice of appeal. A timely notice of
appeal must be filed 60 days after entry of judgment. Fed. R. App. P. 4(c)(1).
Brown’s deadline to appeal the final judgment was November 15, 2021. His motions
for reconsideration did not extend that deadline. See Fed. R. App. P. 4(a)(4)(A)(vi).
Thus, his March 11, 2022, notice of appeal was well past the due date. We therefore
do not consider his appeal of the final judgment.
But Brown’s notice of appeal was timely for the order denying his first motion for
reconsideration, so we do consider the merits of that appeal. We review the district
court’s denial of a Rule 60(b) motion for an abuse of discretion. Lebahn v. Owens, 813
F.3d 1300, 1306 (10th Cir. 2016). And we will not reverse absent a showing that the
decision is “arbitrary, capricious, whimsical, or manifestly unreasonable.” Id. (citation
omitted).
Brown argues the district court misapprehended facts, failed to cite controlling
precedent, and misapprehended his position. We disagree. The district court considered
each of Brown’s arguments in a well-reasoned and thorough order. On appeal, Brown
fails to meet his heavy burden of showing that the trial court abused its discretion. Thus,
we affirm the denial of his first motion for reconsideration.
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CONCLUSION
For these reasons, we dismiss Brown’s appeal of the final judgment as
untimely and affirm the denial of his first motion for reconsideration.
Entered for the Court
Gregory A. Phillips
Circuit Judge
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