                                                                         FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                      UNITED STATES COURT OF APPEALS                 July 17, 2012
                                                                 Elisabeth A. Shumaker
                                  TENTH CIRCUIT                      Clerk of Court



 SHAIDON BLAKE, a/k/a Shamvoy
 Smith,

          Plaintiff-Appellant,
 v.
                                                         No. 12-3053
                                                (D.C. No. 5:11-CV-03085-SAC)
 ARAMARK CORPORATION and
                                                           (D. Kan.)
 RONDA FORD, Food Service
 Administrator, Hutchinson
 Correctional Facility,

          Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges.


      The clerk of the court often seeks to help incarcerated pro se litigants in

their efforts to comply with our filing rules. But at the end of the day, it is the

litigant who must comply with them and we who are obliged to enforce them,




      *
         After examining appellant’s brief and the 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)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. This
order and judgment is not binding precedent except under the doctrines of law of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.
particularly when they call into question our jurisdiction to hear the case in the

first place.

       And that is the problem for Shaidon Blake in this appeal. Mr. Blake filed

his notice of appeal thirty-three days after the district court entered judgment

against him. That was three days too late. See Fed. R. App. P. 4(a). The court

clerk’s office informed Mr. Blake of the problem, helpfully informed him of ways

in which he might invoke the so-called “prison mailbox” rule to overcome it, and

gave him two separate opportunities to do just that. But even after all this, Mr.

Blake still hasn’t satisfied the requirements for invoking the prison mailbox rule

and we cannot help but conclude we are without authority to hear his appeal.

       In a civil case like this one, a timely notice of appeal is a jurisdictional

requirement we have no authority to overlook. Bowles v. Russell, 551 U.S. 205,

214 (2007). Ordinarily, the notice of appeal must be received by the district court

within thirty days. But in the special case of incarcerated prisoners, the notice of

appeal is deemed to be filed on the date it is “deposited in the institution’s

internal mail system,” rather than the date the court receives it. See Fed. R. App.

P. 4(c). This special exception is rooted in the reality that, unlike other litigants,

prisoners do not have the opportunity to oversee the delivery process personally

and should not be penalized for any delay in the prison’s mail processing systems.

See Houston v. Lack, 487 U.S. 266, 270-71 (1988).




                                          -2-
      Mr. Blake’s notice of appeal was due on March 2, 2012, but wasn’t

received until March 5. Spotting this potential problem, the clerk of this court

issued an order for Mr. Blake to show cause why his appeal should not be

dismissed as untimely filed. The order, though, added “that Appellant is

incarcerated and could potentially invoke the prison mailbox rule.” It further

explained that to invoke the prison mailbox rule “Appellant must provide . . .

evidence of the date of placing the notice in the prison mail system, which may

include a declaration by Appellant made under penalty of perjury of the date of

mailing, a certificate of service that complies with the rule and our case law,

and/or a copy of the prison mail log showing the date the notice was placed in the

mail system.” All of this was a correct statement of the law: an inmate has the

burden of proving that he timely placed his notice of appeal in the prison mail

system, and must do so by, for example, submitting either prison mail room logs

or a declaration under penalty of perjury “setting forth the notice’s date of deposit

with prison officials and attest[ing] that first-class postage was paid.” Price v.

Philpot, 420 F.3d 1158, 1165 (10th Cir. 2005) (quotation omitted).

      Mr. Blake did none of this. Instead, he attested only that “[t]his appeal was

timely filed on February 15, 2012” (the date that he had listed on his initial notice

of appeal). But the conclusory claim that his appeal was “timely filed” on

February 15 isn’t the same thing as a declaration that he gave the prison officials

his pleading on that date. It is this latter bit a prisoner must declare to under

                                          -3-
penalty of perjury in order to prove timely filing. See Fed. R. App. P. 4(c)(1). To

be sure, Mr. Blake also submitted a letter he received on February 21, 2012, from

a Kansas state appellate court informing him that it received pleadings from him

which “obviously concern[ed] a Federal court matter.” Presumably, Mr. Blake

included this in his response to show that his notice of appeal was mailed before

March 2 but sent to the wrong court. Mr. Blake never explains, though, how this

helps his cause. He doesn’t allege that someone other than himself (perhaps

someone in the prison mail room) was to blame for misdirecting his mail. And

though the federal rules provide a procedure for automatically correcting a notice

of appeal misdirected to the federal circuit court instead of the district court, that

rule does not by its terms extend to erroneous filing with state courts. See Fed. R.

App. P. 4(d).

      Even after receiving this deficient response to its first show cause order,

the clerk’s office gave Mr. Blake another chance to prove timely filing. It told

him succinctly and in no uncertain terms that, to pursue this appeal, he needed

only “declare under penalty of perjury the date he placed the notice of appeal in

the prison mail system and state that he included pre-paid postage.”

      To all of this, Mr. Blake again failed to respond in a manner that satisfies

the rule. He only and irrelevantly stated that the prison does not keep records of

outgoing mail and so he was unable to submit prison logs showing the date his

filings were placed in the mail. But Mr. Blake did not need prison mail room

                                          -4-
records. He needed only his own sworn statement. See Fed. R. App. P. 4(c)(1).

Despite repeated opportunities to do so, Mr. Blake has failed to provide a

compliant one. And without it, we cannot help but conclude that Mr. Blake has

failed to carry his burden of showing that his appeal was timely filed. See Price,

420 F.3d at 1165. The appeal is dismissed.



                                       ENTERED FOR THE COURT



                                       Neil M. Gorsuch
                                       Circuit Judge




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