Alvin Parker, Petitioner-appellant, v. Attorney General, State of Oklahoma; and Stephen W. Kaiser,respondents-appellees, 953 F.2d 1392 (10th Cir. 1992)

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 case is therefore ordered submitted without oral argument.

This matter is before the court on petitioner's application for a certificate of probable cause. We issue a certificate pursuant to 28 U.S.C. § 2253 and proceed to the merits of the case. See Barefoot v. Estelle, 463 U.S. 880 (1983).

Alvin Parker, a state prisoner, filed a Motion to Vacate Judgment Pursuant to Writ of Error Coram Nobis on April 8, 1991, which was denied by a District Court Order on April 23, 1991. He then filed a Motion for Extension of Time in Which to File Notice of Appeal from that Order, complaining that he did not learn immediately of the district court's judgment. See In re Cosmopolitan Aviation Corp., 763 F.2d 507, 514-15 (2d Cir. 1985) (excusable neglect when party acting in good faith failed to hear that judgment had been entered). The district court denied this motion on July 9, 1991. Mr. Parker appeals the latter denial.

After thorough review of the record and pleadings, we hold that Mr. Parker's motion of April 8, 1991, the denial of which he seeks extra time to appeal, was a second attack on a judgment previously affirmed by this court. As such, the pleading is frivolous, and the district court properly denied Mr. Parker extra time to pursue it. We do not think the district court abused its discretion in denying a motion for extra time to file a frivolous appeal.

Mr. Parker also complains about a delay between the date he submitted the notice of appeal and the date the clerk actually filed it. Our affirmance of the district court's denial of an extension of time renders this issue moot. The notice of appeal would not have been timely even without the delay.

We AFFIRM the District Court's decision to deny the motion for an extension of time for the reasons stated by that court in its Orders of April 23 and July 9, 1991. The mandate shall issue forthwith.