                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 01-1981
                                     ___________

Michael Montez Porchia,                   *
                                          *
             Appellant,                   * Appeal from the United States
                                          * District Court for the
      v.                                  * Eastern District of Arkansas
                                          *
Larry Norris, Director, Arkansas          * [TO BE PUBLISHED]
Department of Correction,                 *
                                          *
             Appellee.                    *
                                     ___________

                              Submitted: May 9, 2001

                                   Filed: May 24, 2001
                                    ___________

Before BOWMAN, BEAM, and BYE, Circuit Judges.
                          ___________

BYE, Circuit Judge.

       Michael Porchia, a state prisoner, may—or may not—have timely filed a notice
of appeal. He bears the burden of demonstrating timeliness and the only evidence in
the record suggests that his appeal was filed six days late. Moreover, Porchia has not
shown that he is entitled to benefit from the prisoner mailbox rule, Fed. R. App. P.
4(c)(1), which deems an appeal filed with prison officials to be filed with the clerk. We
therefore dismiss his appeal for lack of jurisdiction.
                                             I

      A Pulaski County jury convicted Porchia of two counts of second-degree murder
and one count of aggravated robbery in 1990. The conviction was affirmed on direct
appeal.

       In December 1999, Porchia petitioned for a writ of habeas corpus in the United
States District Court for the Eastern District of Arkansas. On February 28, 2001, the
district court1 adopted the recommendation of a magistrate judge that Porchia’s petition
be dismissed because it had been filed outside the one-year statute of limitations, 28
U.S.C. § 2244(d)(1). The district court denied the petition and entered judgment
denying Porchia relief that same day.

        On April 5, the clerk of the district court received a notice of appeal from
Porchia. The envelope containing Porchia’s notice of appeal bore an April 4 postmark.
The district court properly construed Porchia’s notice of appeal as a request for a
certificate of appealability, see Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997), which
the court later denied on April 11. Thereafter, Porchia’s request for a certificate was
forwarded to this court, and specifically to this administrative panel, for disposition.

                                            II

       A state prisoner whose habeas petition is denied by the district court has thirty
days in which to appeal that decision. See Fed. R. App. P. 4(a)(1). In the present case,
the district court entered judgment on February 28. Under the provisions of Rule 4,
Porchia had until March 30 to file a notice of appeal with the clerk of the district court.
As we recounted above, the clerk of the district court did not receive Porchia’s notice


      1
        The Honorable George Howard, Jr., United States District Judge for the Eastern
District of Arkansas.

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of appeal until April 5. Thus, Porchia’s appeal is untimely unless one of the exceptions
in Rule 4(a)(1) applies.

       Rule 4(a)(1) notes an exception for certain prisoners, Rule 4(c)(1). The
exception has come to be known as the “prisoner mailbox rule.” A prisoner may
deposit his notice of appeal in the prison’s internal mail system, rather than with the
clerk, by the thirtieth day. Fed. R. App. P. 4(c)(1). If a prison maintains two internal
mail systems, one for regular mail and another for legal mail, the prisoner gains the
benefit of the mailbox rule only if he deposits his notice of appeal in the “system
designed for legal mail.” Id. In essence, “a notice of appeal is filed within the meaning
of [Rule 4] at the moment it is delivered to prison officials for forwarding to the clerk
of the district court.” Houston v. Lack, 487 U.S. 266, 272 (1988).

      It is unclear whether Porchia deposited his notice of appeal in a prison mailing
system. It is also unclear whether his corrections facility operates a separate legal
mailing system, and, if so, whether Porchia used that system in filing this appeal.
Furthermore, even if Porchia deposited his notice of appeal with prison officials, he has
neglected to inform us of the date when he did so. Assuming that he used a prison
mailing system, Porchia was required to file an affidavit or notarized statement
recounting the precise date upon which he left his notice of appeal with prison
authorities. See Lee v. County of Cook, No. 00-1999, 2001 WL 252928, at *1 (7th
Cir. Mar. 12, 2001) (“In order to receive the benefit of the mailbox rule, prisoners must
demonstrate that they timely presented their submissions to prison authorities for
mailing.”); see also Fed. R. App. P. 4(c)(1), 25(a)(2)(C).

       The requirements of Rule 4 are mandatory and jurisdictional, and thus we may
not lightly overlook a potential timing defect. Arnold v. Wood, 238 F.3d 992, 994-95
(8th Cir. 2001). In the ordinary case, a party desiring to proceed in federal court bears
the burden of establishing the court’s jurisdiction. See V S Ltd. P’ship v. Dep’t of
Hous. and Urban Dev., 235 F.3d 1109, 1112 (8th Cir. 2000) (“The burden of proving

                                          -3-
subject matter jurisdiction falls on the plaintiff.”) (citing Nucor Corp. v. Neb. Pub.
Power Dist., 891 F.2d 1343, 1346 (8th Cir. 1989)). We believe that this principle
extends to appellate cases as well. That is, an appellant must prove that necessary
preconditions to the exercise of appellate jurisdiction—including the timely filing of a
notice of appeal—have been fulfilled. See Martinez v. Comm’r Internal Revenue, No.
90-70552, 1991 WL 113720 (9th Cir. June 21, 1991); see also Silverton v. Valley
Transit Cement Co., 237 F.2d 143, 145 (9th Cir. 1956); cf. In re Piper Aircraft
Distribution Sys. Antitrust Litig., 551 F.2d 213, 216 n.7 (8th Cir. 1977) (“The operative
act is the handing of the notice of appeal to the clerk of the District Court; it is open to
an appellant to prove that this occurred on a date earlier than that recorded on the
notice of appeal.”).

       Porchia has failed to carry his burden in this instance. Porchia has not explained
whether his corrections facility has a separate legal mailing system. He has not
indicated whether he used such a mailing system, if indeed the prison operates one. He
did not attach an affidavit or a notarized statement setting forth the date of deposit into
the prison mail system, and attesting that first-class postage has been prepaid. In short,
the record is bereft of information that supports Porchia’s entitlement to the benefit of
the prisoner mailbox rule.

       Facing a similar situation, the Fourth Circuit recently remanded an appeal to the
district court for the limited purpose of ascertaining whether the prisoner timely filed
a notice of appeal. United States v. Damon, No. 00-4707, 2000 WL 1815934 (4th Cir.
Dec. 12, 2000); cf. Stuckey v. Greiner, No. 97-2826, 1998 WL 650585 (2nd Cir. Aug.
26, 1998) (remanding to determine whether a prisoner timely filed a habeas petition).
We decline to follow the Fourth Circuit’s approach in this instance.

       The filing of a notice of appeal is a ministerial act that should not engender its
own spate of litigation. Appellants bear the burden of demonstrating timely filing
precisely so that circuit courts may expeditiously resolve Rule 4 questions without

                                            -4-
burdening the district courts with appellate business. We perceive no good reason to
allow an appellant to establish timely filing on remand (the second bite at the apple)
when nothing hinders the appellant from proving timely filing when he first appeals.
To permit remand for limited fact-finding by a district court when the appellant does
not, in the first instance, demonstrate timely filing encourages delay and wasteful use
of scarce judicial resources.

       We acknowledge that remand may be appropriate in the rare case in which the
prisoner and the warden present conflicting proof of timeliness, or when other
complicated circumstances exist. See Bridgeforth v. Gibson, No. 97-6396, 1998 WL
729256, at *4 & n.2 (10th Cir. Oct. 16, 1998) (collecting cases). But this is clearly not
the rare case. Porchia has failed to present even a scintilla of evidence that suggests
we should apply the prisoner mailbox rule in his favor.

                                           III

       Accordingly, because we decline to apply the prisoner mailbox rule, Porchia’s
notice of appeal was filed six days late. We therefore dismiss his appeal for lack of
jurisdiction.

      A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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