Patterson v. Rogers
CourtCourt of Appeals for the Tenth Circuit
Date FiledNovember 3, 2026
Docket26-5077
StatusUnpublished
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Full Opinion
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FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 3, 2026
_________________________________
Christopher M. Wolpert
Clerk of Court
BRIAN WAYNE PATTERSON,
Petitioner - Appellant,
v. No. 26-5077
(D.C. No. 4:18-CV-00153-GKF-JFJ)
DAVID ROGERS, Interim Warden, (N.D. Okla.)
Respondent - Appellee.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY *
_________________________________
Before TYMKOVICH, PHILLIPS, and FEDERICO, Circuit Judges.
_________________________________
Pro se petitioner Brian Wayne Patterson, an Oklahoma state prisoner, seeks a
certificate of appealability (COA) to challenge the denial of his motion to reopen the time
to appeal the judgment in his underlying 28 U.S.C. § 2254 proceeding. For the reasons
below, we DENY the requested COA and DISMISS this appeal.
I. Background
A jury convicted Brian Patterson of first-degree robbery, eluding a peace officer,
and obstructing a peace officer after already having two or more felony convictions. The
*
This order is not binding precedent except under the doctrines of law of the case,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.
Appellate Case: 26-5077 Document: 26-1 Date Filed: 11/03/2026 Page: 2
Oklahoma state court sentenced him to life imprisonment. Patterson sought
postconviction relief in state court but was unsuccessful.
In 2018 Patterson filed the § 2254 habeas application underlying this appeal in the
Northern District of Oklahoma asserting 43 claims. The district court denied the petition
on July 10, 2025, but granted Patterson a limited COA to appeal whether the OCCA’s
rule announced in State ex rel. Matloff v. Wallace, 497 P.3d 686 (Okla. Crim. App.
2021), is an independent and adequate state procedural rule that bars relief as to
Patterson’s claim he was denied due process. See Patterson v. Harpe, No. 18-0153,
2025 WL 1908975, at *18 (N.D. Okla. July 10, 2025).
Over nine months later, the district court in late April of 2026 received
correspondence from Patterson claiming that he never received notice of the July 10
judgment until he learned about it from another inmate around April 15, 2026. The court
docketed this correspondence as (1) a notice of appeal to circuit court (challenging the
July 10, 2025, order); (2) a motion for leave to appeal out of time; (3) a motion for
certificate of appealability; and (4) a motion for appointment of counsel.
On May 21, 2026, the court denied the motion for leave to appeal out of time
because Patterson did not file the motion to reopen within 180 days after the entry of
judgment. See Fed. R. App. P. 4(a)(6)(B). The court thus denied as moot his motions for
a COA and appointment of counsel. This court on June 2, 2026, sua sponte dismissed
Patterson’s appeal challenging the July 10, 2025, judgment as untimely. Three days later,
Patterson reiterated his requests above to the district court and again notified his intent to
appeal, prompting the new appeal at hand.
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This court on June 8, 2026, directed a limited remand for the district court to
consider whether to issue a COA for Patterson to appeal the part of the May 21, 2026,
order denying his post-judgment motion to reopen the time to appeal the judgment in the
underlying § 2254 proceeding. The district court the following day entered an order
declining to issue a COA because reasonable jurists would not debate the court’s prior
determination that Patterson did not make the showings necessary to support reopening
the time to appeal.
Patterson now seeks a COA from this court.
II. Discussion
A state prisoner who seeks to appeal a district court’s denial of his § 2254 habeas
petition must first obtain a COA. 28 U.S.C. § 2253(c)(1)(A). We will issue a COA “only
if the applicant has made a substantial showing of the denial of a constitutional right.” Id.
§ 2253(c)(2). Under this standard, the petitioner must demonstrate “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).
Here, reasonable jurists could not debate the denial of Petitioner’s Rule 4(a)(6)
motion. To reopen the time to file an appeal, the district court must find that (1) the
moving party did not receive notice of the entry of judgment under Federal Rule of Civil
Procedure 77(d), (2) the moving party filed the motion within 180 days after the entry of
judgment or within 14 days after the moving party received notice under Federal Rule of
Civil Procedure 77(d), whichever is earlier, and (3) neither party would be prejudiced.
Fed. R. App. P. 4(a)(6).
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Patterson fails to establish that he filed the motion within the time required under
Rule 4(a)(6)(B). The 180-day period began on July 10, 2025, and ended on January 7,
2026. Even assuming that Patterson learning about the judgment on April 15, 2026, was
enough to trigger the 14-day period in Rule 4(a)(6)(B), that knowledge occurred later
than January 7 and thus is immaterial. Patterson moved to reopen the time to file an
appeal over three months after the 180 days elapsed, so he cannot satisfy Rule4(a)(6)(B).
See Clark v. Lavallie, 204 F.3d 1038, 1040 (10th Cir. 2000) (“The 180–day limitation
which governs this case is specific and unequivocal.”); Xiong v. Whitten, No. 23-5038,
2024 WL 2584667, at *1 (10th Cir. May 24, 2024) (unpublished) (denying COA on same
grounds); Portley-El v. Milyard, 365 F. App’x 912, 917 n.9 (10th Cir. 2010)
(unpublished) (“[F]ailure to meet any one condition [of Rule 4(a)(6)] precludes the
reopening of the time to file an appeal.”).
Patterson also moves for leave to proceed in forma pauperis. But because he “has
failed to show the existence of a reasoned, nonfrivolous argument on the law and facts in
support of the issues raised on appeal,” we deny the IFP motion. Rolland v. Primesource
Staffing, LLC, 497 F.3d 1077, 1079 (10th Cir. 2007) (citing 28 U.S.C. § 1915(e)(2)).
And because we deny Patterson’s application for a COA, we also deny as moot his
motions for witness impeachment and for accurate transcript preparation at the state’s
expense.
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III. Conclusion
For these reasons, we deny Patterson’s application for a COA, his motion to proceed
IFP on appeal, his motion for witness impeachment, and his motion for accurate transcript
preparation at the state’s expense. We thus dismiss this appeal.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
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