                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                    July 22, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                     Clerk of Court
                            FOR THE TENTH CIRCUIT


    EDDIE G. MARTINEZ,

                Plaintiff-Appellant,
                                                          No. 09-2258
    v.                                         (D.C. No. 1:08-CV-00830-BB-CG)
                                                           (D. N.M.)
    DAVID EDMONDSON, Commander;
    DANIEL GONZALES, Agent;
    CARROLL CAUDILL, Agent;
    DANIEL J. VASQUEZ, Agent;
    ALLEN D. SANCHEZ, JR., Agent;
    ERIC J. JAMESON, Agent; PECOS
    VALLEY DRUG TASK FORCE,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before TACHA, HOLLOWAY, and ANDERSON, Circuit Judges.



         Eddie G. Martinez appeals the district court’s dismissal of his 42 U.S.C.

§ 1983 complaint. We dismiss his appeal for lack of jurisdiction.



*
       After examining the briefs and 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); 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
                                    Background

      Mr. Martinez filed a pro se complaint alleging that defendants violated his

right to be free from false arrest, false imprisonment, and unreasonable search and

seizure. Defendants and Mr. Martinez both moved for summary judgment. The

magistrate judge recommended that defendants’ motion be granted, that

Mr. Martinez’s motion be denied, and that the complaint be dismissed. No

objections were filed to the magistrate judge’s report and recommendation.

      On September 15, 2009, the district court entered an order adopting the

magistrate judge’s proposed findings and recommended disposition. On that same

date, the district court entered final judgment in favor of defendants and

dismissed all of Mr. Martinez’s claims with prejudice. Mr. Martinez’s notice of

appeal was docketed in the district court on October 16, 2009, one day beyond the

time limit set forth in Fed. R. App. P. 4(a)(1)(A). This court issued a

jurisdictional order asking the parties to file memorandum briefs addressing two

issues: (1) whether Mr. Martinez’s notice of appeal was timely filed; and

(2) whether Mr. Martinez’s failure to file written objections to the magistrate

judge’s report and recommendation waived appellate review of both factual and

legal issues. In response, Mr. Martinez asserted that his notice of appeal was

timely filed under the prison mailbox rule and that his failure to file objections

should be excused because he never received the magistrate judge’s report and

recommendation.

                                         -2-
                                       Discussion

      We must first address our jurisdiction. “The filing of a timely notice of

appeal is an absolute prerequisite to our jurisdiction.” United States v.

Ceballos-Martinez, 387 F.3d 1140, 1143 (10th Cir. 2004) (quotation omitted).

The appellant bears the burden of establishing our jurisdiction. See id.

Mr. Martinez may establish that his appeal was timely filed if he can show that he

complied with the prison mailbox rule. That rule states:

      If an inmate confined in an institution files a notice of appeal in
      either a civil or criminal case, 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.
      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
      first set forth the date of deposit and state that first-class postage has
      been prepaid.

Fed. R. App. P. 4(c)(1). In Ceballos-Martinez, we held that “[i]f a prison lacks a

legal mail system, a 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.” 387 F.3d at 1145. In determining that

Mr. Ceballos-Martinez had failed to comply with the prison mailbox rule, we

noted that his notice of appeal “fail[ed] to affirm that he pre-paid first-class

postage for any of his filings.” Id.

      Here, Mr. Martinez submitted a certificate of service with a notarized

statement indicating that he deposited his notice of appeal in the mail on

                                          -3-
October 15, 2009, but the statement fails to attest that first-class postage was

prepaid. Consistent with our precedent, we conclude that Mr. Martinez’s notice

of appeal does not comply with the prison mailbox rule, and that we therefore

lack jurisdiction over his appeal. See id. at 1145; see also United States v. Smith,

182 F.3d 733, 735 n.1 (10th Cir. 1999) (refusing to grant a pro se prisoner the

benefit of the prison mailbox rule because his filing “did not, as required, ‘state

that first-class postage has been prepaid.’” (quoting Fed. R. App. 4(c)(1)). We

note that Mr. Martinez could have remedied this jurisdictional defect if he had

subsequently filed a declaration or notarized statement that complied with the

prison mailbox rule. See Ceballos-Martinez, 387 F.3d at 1144 n.4 (noting that the

rule does not require that the prisoner file his attestation at any particular time

and “[t]hus, to avoid dismissal of their appeals, we strongly encourage all

prisoners to include with their notices of appeal a declaration or notarized

statement in compliance with Rule 4(c)(1).”); see, e.g., Showalter v. McKune,

299 F. App’x 827, 829 (10th Cir. 2008) (unpublished) (noting that in response to

jurisdictional show cause order appellant “filed an amended certificate of mailing

with the district court stating that first-class postage was prepaid” and that “[b]y

subsequently filing documents that demonstrate compliance with Rule 4(c)(1),

[appellant] cured his original failure to comply with Rule 4(c)(1).”).

      Because the notarized statement on Mr. Martinez’s certificate of service

fails to attest that he pre-paid first class postage and he has not subsequently filed

                                          -4-
a declaration or notarized statement that complies with Rule 4(c)(1), we must

DISMISS this appeal for lack of jurisdiction. 1 Appellant’s motion to proceed in

forma pauperis is GRANTED.


                                                   Entered for the Court



                                                   Stephen H. Anderson
                                                   Circuit Judge




1
       Because we are dismissing this appeal for lack of jurisdiction, we need not
reach the question of whether Mr. Martinez waived appellate review by failing to
file objections to the magistrate judge’s report and recommendation. Likewise,
we need not address the merits of Mr. Martinez’s appeal.

                                        -5-
