                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                     UNITED STATES COURT OF APPEALS August 14, 2008
                                                                 Elisabeth A. Shumaker
                                  TENTH CIRCUIT                      Clerk of Court



 TOMMY LEE CHRISTMAS, JR.,

          Petitioner-Appellant,
                                                         No. 07-5073
 v.
                                               (D.C. No. 03-CV-873-TCK-PJC)
                                                         (N.D. Okla.)
 STATE OF OKLAHOMA,

          Respondent-Appellee.


            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before HENRY, Chief Judge, TYMKOVICH and HOLMES, Circuit Judges.


      Petitioner-Appellant Tommy Lee Christmas, Jr., appearing pro se, seeks a

certificate of appealability (“COA”) to challenge the district court’s denial of his

28 U.S.C. § 2254 petition for writ of habeas corpus. We have jurisdiction under

28 U.S.C. §§ 1291 and 2253(a). Reviewing Mr. Christmas’s filings liberally, 1 we


      *
          This Order and Judgment is not binding precedent, except under the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. After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
      1
          Because Mr. Christmas is proceeding pro se, we review his pleadings
and filing liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Howard
v. U.S. Bureau of Prisons, 487 F.3d 808, 815 (10th Cir. 2007).
hold that no reasonable jurist could conclude that the district court’s denial was

incorrect. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, we

DENY Mr. Christmas’s application for a COA and DISMISS his appeal.

                                I. BACKGROUND

      In February 2001, Mr. Christmas was charged in Tulsa County District

Court with seven counts stemming from a robbery and his subsequent attempt to

flee the scene. Represented by counsel, Mr. Christmas filed an application for a

determination of competency. A competency hearing was held, and the trial court

found Mr. Christmas “to be incompetent but capable of possibly achieving

competency within a reasonable period.” R., Doc. 7, Ex. 1 at 50 (Tr. of

Proceedings, dated Sept. 25, 2001). The court ordered Mr. Christmas committed

to have doctors further examine him and determine if he could attain competency.

      A second competency hearing was held in March 2002, at which the court

found Mr. Christmas competent to stand trial. Mr. Christmas filed a motion to

reconsider, which was denied. In September 2002, Mr. Christmas filed another

application for a determination of competency. The court heard arguments from

Mr. Christmas’s counsel and concluded that there was no new evidence to justify

another competency hearing.

      Mr. Christmas entered a blind plea of no contest to five of the counts, and

the remaining two counts were dismissed. The district court found Mr. Christmas

guilty and sentenced him to twenty-five years of imprisonment on each of three

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counts, thirty-five years of imprisonment on one count, and twenty years of

imprisonment on the remaining count, with these sentences to be served

consecutively. Mr. Christmas then filed a motion to withdraw his plea. After a

hearing, the district court denied his motion.

      Mr. Christmas then filed a certiorari appeal to the Oklahoma Court of

Criminal Appeals (“OCCA”). He raised six issues but only argued that his plea

was not knowingly and voluntarily entered. The OCCA only addressed the issue

he argued and found that his plea was entered into knowingly and voluntarily.

      Mr. Christmas raised the same issue—that his plea was not knowing and

voluntary—in his federal habeas corpus petition filed with the district court. The

district court denied his petition and entered its final judgment on March 30,

2007. Mr. Christmas filed a notice of appeal, which was received by the district

court on May 3, 2007, but dated by Mr. Christmas as being sent on April 29.

                                 II. DISCUSSION

      As a threshold matter, we must determine our jurisdiction to hear this

appeal. United States v. Meyers, 200 F.3d 715, 718 (10th Cir. 2000). “[T]he

timely filing of a notice of appeal in a civil case is a jurisdictional requirement.”

Bowles v. Russell 127 S. Ct. 2360, 2366 (2007). The Federal Rules of Appellate

Procedure establish that a notice of appeal must be filed within 30 days after a

civil judgment being appealed is entered. Fed. R. App. P. 4(a)(1)(A).

Accordingly, Mr. Christmas’s notice of appeal was due by April 30. His notice is

                                          3
timely only if we can accept April 29, the date on which Mr. Christmas indicates

he sent the notice, as the date of filing. Mr. Christmas bears the burden of

establishing that his filing was timely. See Manco v. Werholtz, 528 F.3d 760, 762

(10th Cir. 2008) (citing Price v. Philpot, 420 F.3d 1158, 1165 (10th Cir. 2005)).

      When a party is incarcerated, as Mr. Christmas is, a filing is considered

timely “if it is deposited in the institution’s internal mail system on or before the

last day for filing.” Fed. R. App. P. 4(c)(1). To comply with this prison mailbox

rule, the prisoner must use a legal mail system at the prison or, if the prison lacks

such a system, the prisoner must “submit a declaration or notarized statement

setting forth the notice’s date of deposit with prison officials and attest that

first-class postage was pre-paid.” United States v. Ceballos-Martinez, 387 F.3d

1140, 1145 (10th Cir. 2004). Because Mr. Christmas does not have access to a

legal mail system and his certificate of mailing on his notice of appeal did not

include all of the required information, we filed an order on May 10, 2007,

instructing Mr. Christmas to provide written proof that he complied with the

prison mailbox rule. Mr. Christmas filed a response in which he indicated, under

penalty of perjury, that he deposited his notice of appeal into the prison mail, with

postage pre-paid, on April 29, 2007. He also included a footnote quoting Fed. R.

App. P. 25(a)(2)(c), which has the same requirements for inmate filing as Fed. R.

App. P. 4(c)(1).

      Mr. Christmas failed to note in the body of his response that first-class

                                           4
postage was prepaid—information that is required by the rule. However,

construing Mr. Christmas’s pro se filings liberally, this information did appear in

the response’s footnote through a reference to the language of Rule 25(a)(2)(c).

Accordingly, we consider this information to have been properly included in Mr.

Christmas’s response. Furthermore, there is no requirement that the attestation in

the rule be filed at any particular time so long as it is filed before the case is

resolved. Ceballos-Martinez, 387 F.3d at 1144 n.4. Accordingly, we conclude

that Mr. Christmas’s response was sufficient to invoke our jurisdiction under the

prison mailbox rule.

      Turning to the merits of Mr. Christmas’s appeal, 2 we deny his COA for

substantially the same reasons that the district court denied his habeas petition.

      Regarding Mr. Christmas’s claims that he was incompetent to enter a plea

and the state trial court erred in finding him competent, the district court properly

applied Allen v. Mullin, 368 F.3d 1220 (10th Cir. 2004), in concluding that Mr.


      2
              Although Mr. Christmas states that he is reasserting the arguments he
has previously made, he focuses his argument on appeal on the constitutionality
of Oklahoma’s procedures for determining competency. However, this is not an
issue that we can consider because Mr. Christmas has not exhausted his remedies
on this issue. See 28 U.S.C. § 2254(b), (c). Furthermore, he did not present this
claim to the district court, and absent extraordinary circumstances, we will not
consider an issue on appeal that was not before the district court. See Lyons v.
Jefferson Bank & Trust, 994 F.2d 716, 721 (10th Cir. 1993) . We are not aware of
any extraordinary circumstances here that would lead us to depart from this
settled practice to reach Mr. Christmas’s late-blooming issue concerning the
constitutionality of Oklahoma’s competency procedures. We deem this issue to
be forfeited.

                                            5
Christmas did not present a procedural or substantive competency claim. The

record demonstrates that there was a competency hearing where a state

psychologist opined that Mr. Christmas was malingering, supporting her

conclusion by reference inter alia to psychological tests performed on Mr.

Christmas and school records. The only evidence to the contrary came from

another psychologist who did not believe that Mr. Christmas was malingering but

had not conducted any tests regarding malingering. Based on the totality of the

evidence, Mr. Christmas has not demonstrated that the state trial court failed to

give proper weight to the evidence suggesting incompetence; therefore, he has not

demonstrated a procedural competency claim. See Allen, 368 F.3d at 1239-40.

      Because competency is a factual issue, Thompson v. Keohane, 516 U.S. 99,

111 (1995), there is a presumption that the state court was correct in making that

determination. 28 U.S.C. § 2254(e)(1). Mr. Christmas must show clear and

convincing evidence rebutting this presumption. Id. However, he has failed to

rebut this presumption and “create[] a real, substantial and legitimate doubt as to

his competency to stand trial.” Allen, 368 F.3d at 1240 (citation omitted).

Accordingly, his substantive competency claim is also without merit.

      Mr. Christmas’s argument on his claim that his plea was not knowing and

voluntary because his attorney told him that his sentences would “run together” if

he pled guilty also fails. The district court properly applied Allen, supra, and

Cunningham v. Diesslin, 92 F.3d 1054 (10th Cir. 1996), in concluding that Mr.

                                         6
Christmas’s plea was knowing and voluntary. The record is replete with

statements from Mr. Christmas indicating that he understood the proceedings.

Mr. Christmas also admitted that his attorney did not promise him anything in

return for his plea. Thus, with Mr. Christmas’s admission that no promises were

ever made, at best there was a statement from his attorney that his sentences

would likely be concurrent, and such an erroneous sentencing prediction does not

render a plea unknowing. See Cunningham, 92 F.3d at 1061. Likewise, Mr.

Christmas has not demonstrated that he did not understand the proceedings. See

Allen, 368 F.3d at 1240. Accordingly, Mr. Christmas’s claim that his plea was

not knowing and voluntary is without merit.

      For the reasons stated above, Mr. Christmas’s request for a COA is

DENIED and his appeal is DISMISSED.



                                      ENTERED FOR THE COURT



                                      Jerome A. Holmes
                                      Circuit Judge




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