                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                                    June 28, 2016
                        FOR THE TENTH CIRCUIT                   Elisabeth A. Shumaker
                     _________________________________              Clerk of Court

UNITED STATES OF AMERICA,

      Plaintiff-Appellee,

v.                                                   No. 16-2061
                                          (D.C. No. 1:13-CV-00738-WJ-LAM
NATHAN DON JACK,                             & No. 1:09-CR-02626-WJ-1)
                                                     (D. N. Mex.)
      Defendant-Appellant.

                     _________________________________

                        ORDER AND JUDGMENT*
                     _________________________________

Before L U C E R O , M A T H E S O N , and B A C H A R A C H , Circuit Judges.
                     _________________________________


      This appeal grows out of prior proceedings involving Mr. Nathan

Don Jack’s conviction in federal court for second-degree murder. After

unsuccessfully appealing, Mr. Jack filed a motion to vacate under 28

U.S.C. § 2255. The district court denied relief, and Mr. Jack filed a

motion to alter or amend the judgment under Federal Rule of Civil



*
     Oral argument would not materially aid our consideration of this
appeal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). Thus, we
have decided the appeal based on the briefs.

     Our order and judgment does not constitute binding precedent
except under the doctrines of law of the case, res judicata, and collateral
estoppel. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
Procedure 59(e). The district court denied this motion, and Mr. Jack

appealed. We concluded that Mr. Jack’s motion under Rule 59(e) had

been filed out of time. United States v. Jack, 630 F. App’x 858 (10th Cir.

2015) (unpublished). Apparently misunderstanding our conclusion as

turning on the date his motion had been postmarked, Mr. Jack moved in

district court to correct the record. The district court denied relief,

concluding that the record did not need to be corrected because our prior

opinion did not turn on the date of the postmark. We agree.

      The deadline for filing a Rule 59(e) motion is 28 days after entry of

the judgment. Fed. R. Civ. P. 59(e). Because Mr. Jack was a prisoner, he

could take advantage of the “prisoner mailbox rule.” Under this rule, the

court regards the filing date of a motion as the date that the prisoner gave

his document to prison authorities for filing. Price v. Philpot, 420 F.3d

1158, 1163-64 (10th Cir. 2005). But the rule requires the prisoner to do

certain things. For example, when filing a motion under 28 U.S.C.

§ 2255, the prisoner must use the available system for legal mail, put the

document in the institutional mailing system by the deadline, and file a

declaration or notarized statement setting forth the date of deposit and

stating that first-class postage had been prepaid. Rule 3(d), Rules

Governing Section 2255 Proceedings for the U.S. District Courts.




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      The district court concluded that the Rule 59(e) motion had been

filed out of time, and we agreed in the prior appeal. United States v.

Jack, 630 F. App’x 858, 860 (10th Cir. 2015) (unpublished). There, we

explained that Mr. Jack had not satisfied two requirements for using the

prisoner mailbox rule: (1) he did not say that he had sent the motion

through the prison legal-mail system, and (2) his declaration did not state

that first-class postage had been prepaid. Id. at 860-61. As a result, we

held that the Rule 59(e) motion had not tolled the time to appeal the

denial of relief under § 2255. Id. at 861.

      Mr. Jack apparently misunderstood our opinion, for he wants to

clarify the record to show the correct date of the postmark on the

envelope containing his Rule 59(e) motion. The district court declined to

clarify the record because the proposed clarification would not have

made any difference. The court was correct because we had not referred

to the postmark date when deciding that the motion was untimely.

Instead, we relied on Mr. Jack’s failure to state that he had used the

prison’s legal-mail system and that first-class postage had been prepaid.

Based on that reasoning, the district court denied Mr. Jack’s request for

clarification of the record on the date of the postmark.

      Mr. Jack’s only argument on appeal is that the district court should

have allowed clarification of the record regarding the date of the

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postmark. We reject this argument because we agree with the district

court’s reasoning. Under our prior opinion, Mr. Jack’s Rule 59(e) motion

would have remained untimely regardless of the date of the postmark. As

a result, we affirm.

      Finally, we note that Mr. Jack seeks leave to appeal in forma

pauperis. Though Mr. Jack is indigent, he lacks any good faith for this

appeal. As a result, we deny leave to appeal in forma pauperis. See

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

2007).


                                   Entered for the Court



                                   Robert E. Bacharach
                                   Circuit Judge




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