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

                            FOR THE TENTH CIRCUIT                        January 21, 2014

                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff-Appellee,

v.                                                          No. 13-3247
                                                  (D.C. Nos. 2:11-CV-02554-CM &
TERRY J. MCINTYRE, JR., a/k/a “T-                    2:06-CR-20047-CM-JPO-3)
Mac,” a/k/a “Florida,”                                        (D. Kan.)

             Defendant-Appellant.


                                        ORDER*


Before KELLY, HARTZ, and BACHARACH, Circuit Judges.


      Terry J. McIntyre, Jr., seeks a certificate of appealability (COA) to secure

review of a district court order dismissing, for lack of subject matter jurisdiction, a

motion for relief from judgment in a 28 U.S.C. § 2255 case. Because Mr. McIntyre

has failed to show that he timely filed this appeal, “we lack jurisdiction to address his

application for COA, or the merits of his appeal,” and must therefore dismiss the

appeal. Watkins v. Leyba, 543 F.3d 624, 625 (10th Cir. 2008).




*
       This order is not binding precedent except under the doctrines of law of the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 jurisdiction here turns on application of the prison mailbox rule,

now codified at Fed. R. App. P. 4(c)(1). Mr. McIntyre’s notice of appeal was

received on September 30, 2013, six days late (though a certificate of service stated

that it was mailed on September 22).1 Ordinarily, i.e., absent application of the

mailbox rule, a notice of appeal is deemed filed upon receipt by the court. Houston

v. Lack, 487 U.S. 266, 274 (1988). A timely notice of appeal under Rule 4(a) and

28 U.S.C. § 2107(a) is, of course, a prerequisite to our appellate jurisdiction.2

See Bowles v. Russell, 551 U.S. 205, 214 (2007). Accordingly, this court issued an

order noting the facial jurisdictional deficiency, explaining that it could be obviated

if Mr. McIntyre presented the notice of appeal to prison officials for mailing in

timely fashion and complied with the requirements in Rule 4(c)(1) to establish that

fact, and giving him 21 days to show cause why the appeal should not be dismissed.

      Rule 4(c)(1) provides that, for prisoners, the timely filing of a notice of appeal

through use of a prison mail system “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.” We have

repeatedly held that use of a prison’s regular internal mail system will not trigger this

1
       Strictly speaking, Mr. McIntyre filed a COA application in this court rather
than a notice of appeal in the district court as prescribed by Fed. R. App. P. 4(a)(1),
but we liberally construed the COA application as a notice of appeal and sent it to the
district court noting the date of receipt as the filing date under Fed. R. App. P. 4(d).
2
      The deadlines in Rule 4(a) govern the time for appeal in § 2255 proceedings.
See Rule 11(b) of the Rules Governing Section 2255 Proceedings.


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mailbox rule if the latter requirements are not satisfied, in which case the date of

receipt by the court continues to control.3 See, e.g., Price v. Philpot, 420 F.3d 1158,

1167 (10th Cir. 2005) (mailbox rule inapplicable because declaration did not include

“under penalty of perjury” language); United States v. Ceballos-Martinez, 387 F.3d

1140, 1142 (10th Cir. 2004) (dismissing appeal where notice of appeal failed to

include declaration or notarized statement satisfying Rule 4(c)(1)); United States v.

Smith, 182 F.3d 733, 734 n.1 (10th Cir. 1999) (mailbox rule inapplicable because

declaration did not state that first-class postage had been prepaid). The certificate of

mailing attached to Mr. McIntyre’s notice of appeal clearly did not satisfy the

requirements of Rule 4(c)(1), and he has never claimed that it did.

      Mr. McIntyre’s response to the show cause order takes two different tacks.4

First, he contends our case law is contrary to the seminal prison mailbox decision in

Houston. But our case law simply applies Rule 4(c)(1), which we have repeatedly

noted incorporates and codifies the ruling in Houston, see Price, 420 F.3d at 1164;

United States v. Gray, 182 F.3d 762, 766 n.7 (10th Cir. 1999). Second, he proffers a

post hoc declaration, stating under penalty of perjury that he “filed [the notice of

appeal] on September 22, 2013, by handing institutional staff the legal documents.”

3
      Use of a dedicated legal mail system is treated differently, but Mr. McIntyre
has never claimed his prison has such a system, much less alleged he used it.
4
       The pleading is designated “Appellant’s Request for Correction of Clear Error
and a Manifest Error of Law and Fact in Reference to the Court’s Dismissal of the
Appeal for Lack of Jurisdiction, with Request for Reinstatement of the Appeal.” We
refer to it simply as “Response” herein.


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Resp. at 3. This says nothing to confirm that first class postage was prepaid, as

required by Rule 4(c)(1), and therefore is insufficient to trigger the mailbox rule, see

Smith, 182 F.3d at 734 n.1. It is the prisoner’s burden to demonstrate timely filing

through operation of the rule, Price, 420 F.3d at 1165, and while a post hoc

declaration may suffice, we have held that the failure to file a qualifying declaration

before we resolve the case deprives us of jurisdiction and requires dismissal of the

appeal, Ceballos-Martinez, 387 F.3d at 1144 n.4.

      Applying our controlling precedent, we must dismiss this appeal. We

nevertheless deem it appropriate to grant Mr. McIntyre’s motion to proceed in forma

pauperis (IFP). Cf. Watkins, 543 F.3d at 627.

      The appeal is hereby dismissed. Appellant’s motion to proceed IFP is granted.

                                                Entered for the Court



                                                ELISABETH A. SHUMAKER, Clerk




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