                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                            FOR THE TENTH CIRCUIT                          December 22, 2016
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
JEFFREY MARCUS PEASE,

      Petitioner - Appellant,

v.                                                          No. 16-1301
                                                   (D.C. No. 1:16-CV-00279-LTB)
RICK RAEMISCH, Executive Director of                       (D. Colorado)
CDOC; THE ATTORNEY GENERAL OF
THE STATE OF COLORADO,

      Respondents - Appellees.
                      _________________________________

                                ORDER DENYING
                       CERTIFICATE OF APPEALABILITY*
                        _________________________________

Before BRISCOE, GORSUCH, and McHUGH, Circuit Judges.
                  _________________________________


      Jeffrey Marcus Pease seeks a certificate of appealability allowing him to

appeal the district court’s denial of his 28 U.S.C. § 2254 application. Mr. Pease is a

Colorado state prisoner appearing pro se, so we liberally construe his pleadings.

Ogden v. San Juan Cty., 32 F.3d 452, 455 (10th Cir. 1994). Nonetheless, a pro se

litigant must comply with procedural rules. Id. Because we conclude Mr. Pease’s




      *
         This order is not binding precedent, except under the doctrines of law of the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.
notice of appeal was untimely, we lack jurisdiction over this matter and must dismiss

it.

      In 1998, Mr. Pease was convicted of numerous sex offenses in Colorado state

court. He filed an application for a writ of habeas corpus in February 2016, arguing

that his conviction and sentence violated the Constitution’s prohibition on ex post

facto laws. U.S. Const. art. I, § 10, cl. 1; see also Bouie v. City of Columbia, 378 U.S.

347, 353 (1964) (“An ex post facto law . . . [is] one that makes an action done before

the passing of the law, and which was innocent when done, criminal; and punishes

such action, or that aggravates a crime, or makes it greater than it was, when

committed.” (internal quotation marks omitted)). Mr. Pease acknowledged that his

application was filed outside the 1-year period of limitation, see 28 U.S.C. § 2244(d),

but argued he was entitled to equitable tolling. The district court determined Mr.

Pease had not established a legitimate basis for tolling and therefore dismissed the

application as time-barred on May 23, 2016.

      Mr. Pease then filed a “Request for Excuse of Filing Delay, and Temporary

Stay . . . ,” which the district court construed as in part a motion for reconsideration

under Federal Rule of Civil Procedure 59(e) and in part a request for an extension of

time in which to appeal the court’s May 23 order. On June 20, 2016, the district court

denied reconsideration but granted Mr. Pease 30 days in which to file a notice of

appeal. The deadline for filing the notice of appeal was July 20, 2016, but Mr.

Pease’s notice of appeal was filed on July 21.



                                                 2
      Ordinarily, we lack jurisdiction where an appealing party untimely filed its

notice of appeal. See Bowles v. Russell, 551 U.S. 205, 214 (2007); United States v.

Ceballos-Martinez, 387 F.3d 1140, 1143 (10th Cir. 2004) (“The filing of a timely

notice of appeal is an absolute prerequisite to our jurisdiction.” (citation omitted)).

The question here is whether Mr. Pease’s untimely filing of his notice of appeal can

be salvaged under the prison mailbox rule set forth in Federal Rule of Appellate

Procedure 4(c). After receiving Mr. Pease’s untimely notice, we issued an Order on

July 29, 2016, apprising Mr. Pease of the prison mailbox rule, listing its

requirements, and requesting that Mr. Pease demonstrate he complied with those

requirements. Mr. Pease filed a response on August 16, 2016, but it is inadequate.

      When Mr. Pease filed his notice of appeal and his response to our July 29

Order, Rule 4(c) provided:

      If an inmate confined in an institution files a notice of appeal . . . , the
      notice is timely if it is deposited in the institution’s internal mail system
      on or before the last day for filing. If an institution has a system
      designed for legal mail, the inmate must use that system to receive the
      benefit of this [Rule 4(c)]. Timely filing may be shown by a declaration
      in compliance with 28 U.S.C. § 1746 or by a notarized statement, either
      of which must set forth the date of deposit and state that first-class
      postage has been prepaid.

Fed. R. App. P. 4(c)(1).1 If an inmate satisfies these requirements, we treat his or her

notice of appeal as having been “filed” on the date it was given to prison authorities


      1
        Rule 4(c) was amended effective December 1, 2016. The rule now provides
in relevant part:
       (1) If an institution has a system designed for legal mail, an inmate
       confined there must use that system to receive the benefit of this Rule
       4(c)(1). If an inmate files a notice of appeal . . . , the notice is timely if
                                                3
for mailing. See Price v. Philpot, 420 F.3d 1158, 1163–65 (10th Cir. 2005). The

burden is on Mr. Pease, as the inmate, to show he complied with these requirements

and that his filing therefore was timely under the prison mailbox rule. Id. at 1165.

      Mr. Pease failed to do so. If a designated system for legal mail is available, the

prisoner must use it in order to invoke the prison mailbox rule. Id. at 1165–66. Here,

Mr. Pease submitted a mail log but he did not say whether a legal mail system was

available or, if it was, whether he used it. “Without this information, the notice of

appeal is not timely under the prison mailbox rule.” Sweets v. Martin, 625 F. App’x

362, 364 (10th Cir. 2015) (unpublished). As the Sweets panel noted, this “omission

may seem like a technicality,” but it is a technicality with jurisdictional

consequences. See id.; see also Price, 420 F.3d at 1166 (“If a legal mail system were

available, [the inmate-plaintiff] would be required to use it to obtain the benefit of

the mailbox rule. However, [the inmate-plaintiff] has failed to allege, or timely




       it is deposited in the institution’s internal mail system on or before the
       last day for filing and:
           (A) it is accompanied by:
               (i) a declaration in compliance with 28 U.S.C. § 1746—or a
               notarized statement—setting out the date of deposit and stating
               that first-class postage is being prepaid; or
               (ii) evidence (such as a postmark or date stamp) showing that the
               notice was so deposited and that postage was prepaid . . . .
Fed. R. App. P. 4(c)(1)(A)(i)–(ii). We apply the pre-amendment version of Rule 4(c)
in effect when Mr. Pease filed his notice of appeal and responded to our July 29
Order requesting that he demonstrate compliance with that version of the rule. Cf.
United States v. Smotherman, 838 F.3d 736, 737–39 (6th Cir. 2016) (noting accord
with impending amendment to Rule 4(c), but grounding decision in pre-amendment
version).
                                               4
establish, that he did so. Alleging only that he used ‘the institutional mails’ is

insufficient to connote use of the ‘legal mail system.’” (citation omitted)).

      Moreover, even if we assume there was no compliant legal-mail system

available, Mr. Pease “still failed to establish his compliance with the mailbox rule”

because he did not “execut[e] a notarized statement or a declaration under penalty of

perjury pursuant to 28 U.S.C. § 1746 setting forth the date of his deposit in the

regular mail system and stating that he included pre-paid postage.” Price, 420 F.3d at

1166–67. Mr. Pease’s notice of appeal did not come with a certificate of service

attached. And Mr. Pease’s response was neither a notarized statement nor a sworn

declaration. It simply referenced an attached mail log and receipt showing a

withdrawal of postage funds and “pray[ed] that the enclosed [documents] meet[] the

Courts [sic] requirement under Fed. R. App. P. 4(c)(1) as applicant complied with the

Mail Box Rule as Pease is confined in an institution.” This does not suffice. See

Price, 420 F.3d at 1167 (holding, even where inmate-plaintiff submitted certificate of

service stating he placed filing in prison mail on timely date and with appropriate

postage, that submission failed to satisfy mailbox rule because “there [was] no ‘under

penalty of perjury’ language as specifically required by 28 U.S.C. § 1746”).

      For these reasons, we conclude Mr. Pease is not entitled to the benefit of the

prison mailbox rule and that his notice of appeal was untimely filed. We therefore

lack jurisdiction over this matter and dismiss it. We also deny Mr. Pease’s motion to

proceed in forma pauperis for non-compliance with Federal Rule of Appellate

Procedure 24(a)(5) and for failure to demonstrate “the existence of a reasoned,

                                                5
nonfrivolous argument on the law and facts in support of the issues raised on appeal.”

Rolland v. Primesource Staffing, LLC, 497 F.3d 1077, 1079 (10th Cir. 2007).

                                              ENTERED FOR THE COURT


                                              Carolyn B. McHugh
                                              Circuit Judge




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