                                                                              F IL E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                    U N IT E D ST A T E S C O U R T O F A PP E A L S
                                                                             October 19, 2006
                                 T E N T H C IR C U IT
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court

 U N ITED STA TES O F A M ER ICA ,

       Plaintiff - Appellee ,
                                                          No. 06-2122
 v.                                                (D.C. Nos. CIV-05-1345 and
                                                         CR-02-2303 W J )
 BREN T M AR QU IZE LEE ,                                   ( D.N.M .)

       Defendant - Appellant .



                                        ORDER
               D E N Y IN G C E R T IF IC A T E O F A PP E A L A B IL IT Y


Before K E L L Y , M cK A Y , and L U C E R O , Circuit Judges.


      Defendant-Appellant Brent M arquize Lee pled guilty to conspiracy to

distribute and possess with intent to distribute cocaine (count I), possession with

intent to distribute cocaine base (count II), and being a fugitive from justice in

possession of a firearm (supplemental information). 21 U.S.C. §§ 841(a)(1),

(b)(1)(B)(iii), 846 and 18 U.S.C. §§ 2, 922(a)(2), (g)(2). M r. Lee indicates that in

July 2003, the district court sentenced him to 188 months imprisonment as to

counts I and II, and 119 months on the supplemental information, to run

concurrently. M r. Lee did not appeal his conviction or sentence. On December

27, 2005, M r. Lee filed a 28 U.S.C. § 2255 motion alleging that his sentence was
illegal under the Supreme Court’s decisions in Blakely v. W ashington, 542 U.S.

296 (2004), and United States v. Booker, 543 U.S. 220 (2005). He also argued

that the Booker decision resulted in a breach of his plea agreement and that he

received ineffective assistance of counsel at sentencing.

      After reviewing the merits, the district court dismissed M r. Lee’s petition

with prejudice on February 13, 2006. R. Doc. 3 at 2. On April 17, 2006, M r. Lee

filed a notice of appeal, which w e construe as a renew ed application for a

certificate of appealability (“COA”). Fed. R. App. P. 22(b). Because M r. Lee has

failed to demonstrate that it is reasonably debatable whether the district court’s

ruling dismissing his claims is correct, Slack v. M cDaniel, 529 U.S. 473, 484

(2000), we deny a COA and dismiss the appeal.

      As a threshold matter, we must determine whether M r. Lee’s notice of

appeal is timely. As we have frequently stated, “[t]he filing of a timely notice of

appeal is an absolute prerequisite to our jurisdiction.” Parker v. Bd. of Pub.

Utils., 77 F.3d 1289, 1290 (10th Cir. 1996). The party claiming appellate

jurisdiction, in this case M r. Lee, has the burden of establishing our subject-

matter jurisdiction. M ontoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002).

      Rule 4(a)(1)(B), Fed. R. App. P., requires that notice of appeal be filed

within 60 days of the entry of judgment for any civil or criminal case in which the

United States is a party. The district court entered judgment on February 13,



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2006, see Fed. R. Civ. P. 58(b)(2) (noting that a judgment is entered when it is

filed as a separate document), but M r. Lee filed his notice of appeal on April 17,

2006, some 63 days later. Because M r. Lee did not file the notice within 60 days,

we have jurisdiction only if he can demonstrate compliance with the prison

mailbox rule embodied in Rule 4(c)(1), Fed. R. App. P.

      The prison mailbox 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 set
      forth the date of deposit and state that first-class postage has been
      prepaid.

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

      In U nited States v. Ceballos-M artinez, 387 F.3d 1140, 1145 (10th Cir.

2004), 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.”

W hile w e held the declaration or notarized statement requirement to be absolute

in cases w here there is no special legal mail system, we noted that a prisoner is

free to file his declaration or notarization at any time until the case is resolved.

Id. at 1144, n.4. Failure to comply with the declaration and notarization



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requirement prevents this court from having jurisdiction. Id. at 1445.

      W e issued an order to show cause requiring M r. Lee to address whether his

notice of appeal was in compliance with the prison mailbox rule. W hile M r. Lee

could have submitted a declaration or notarized statement at that time, he instead

included a paragraph in his brief explaining that he and his law clerk were

separated because of hurricane Katrina, he had used “a third party mail system” to

communicate w ith the court, and he had used “due diligence in filing his

paperwork.” Applt. Br. at 3.

      If M r. Lee did not use a legal mail system, we lack jurisdiction. Absent a

legal mail system, a prisoner must submit a declaration or notarized statement

listing the date of deposit with prison officials and attesting that first-class

postage was pre-paid. Ceballos-M artinez, 387 F.3d at 1445. W e have rejected

explanations that fail to strictly comply with our requirements. See Price v.

Philpot, 420 F.3d 1158, 1166-67 (10th Cir. 2005) (finding insufficient an

appellant’s notarized statement because it did not include the language “under

penalty of perjury” as required by 28 U.S.C. § 1746); United States v. Smith, 182

F.3d 733, 735 n.1 (10th Cir. 1999) (rejecting appellant’s declaration because it

failed to state that first-class postage was prepaid); United States v. Herrera, 178

Fed. App’x. 830, 833 (10th Cir. 2006) (rejecting as sufficient an appellant’s

excuse that hurricane K atrina actually delayed the transport of his filing).



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      W hile M r. Lee does not precisely state that he used a legal mail system, he

does state that he used “a third party mail system,” which under the facts herein,

we equate to a “legal mail system.” The envelope (correctly retained by the

district court) containing M r. Lee’s notice of appeal bears independent

verification that such a system w as used. See Ceballos-M artinez, 387 F.3d at

1144 (declaration or notarized statement is required only “in lieu of documenting

the time of deposit by way of the legal mail system”). Stamped on the envelope,

which was transmitted by certified mail and postmarked A pril 13, 2006, is a

statement from the prison indicating that M r. Lee’s envelope was received and

processed “through special mailing procedures” on April 12, 2006, or 58 days

after entry of judgment by the district court. Coupled with M r. Lee’s independent

assertion that he used a “third party mail system,” the prison’s statement is

sufficient proof to demonstrate that M r. Lee used a legal mail system. See

Philpot, 420 F.3d at 1165 (citing Houston v. Lack, 487 U.S. 266, 275 (1988), for

the notion that the presence of a receipt log is the key component of a legal mail

system). This conclusion is consistent with our practice of liberally construing a

pro se litigant’s pleadings, see W hite v. Colorado, 82 F.3d 364, 366 (10th Cir.

1997), and our inclination to decide cases on the merits as opposed to reliance on

minor technicalities, see Denver & Rio Grande W . R.R. Co. v. Union Pac. R.R.

Co., 119 F.3d 847, 848 (10th Cir. 1997).



                                         -5-
      Unfortunately for M r. Lee, however, we find the district court’s resolution

of his § 2255 motion not reasonably debatable. 1 Arguments like M r. Lee’s, that

his sentence is illegal under Blakely and Booker, have been rejected by this court

many times. The holdings in Blakely and Booker are not retroactive and apply

only to pending cases or cases on direct review when the decisions were issued.

United States v. Bellamy, 411 F.3d 1182, 1188 (10th Cir. 2005); United States v.

Price, 400 F.3d 844, 849 (10th Cir. 2005); Leonard v. United States, 383 F.3d

1146, 1148 (10th Cir. 2004). Because M r. Lee seeks collateral relief, which does

not constitute direct review , Blakely and Booker are of no avail.

      M r. Lee also claims he received ineffective assistance of counsel at

sentencing. To succeed on an ineffective assistance of counsel claim, M r. Lee

must show that his counsel was constitutionally deficient and that such deficient

performance prejudiced him. Strickland v. W ashington, 466 U.S. 668, 687

(1984); United States v. Orange, 447 F.3d 792, 796 (10th Cir. 2006). Failure to

demonstrate either a deficiency or prejudice is fatal to an ineffective assistance of

counsel argument. Orange, 447 F.3d at 796-97.

      M r. Lee argues that his counsel was deficient because he permitted M r.



      1
         M r. Lee’s arguments are not the clearest, but we think the district court
correctly categorized them as a Booker challenge and an ineffective assistance of
counsel challenge. M r. Lee’s apparent argument that his plea should be
specifically enforced, taking into account admitted facts only, is essentially an
argument to apply Booker to his sentence.

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Lee’s sentence to be calculated based on facts that were not admitted to or proved

beyond a reasonable doubt to a jury–the very issued raised in Blakely and Booker.

Consequently, M r. Lee essentially argues that his counsel was ineffective because

he did not anticipate the holdings in Blakely and Booker–cases that were handed

down well after M r. Lee was sentenced. The Sixth Amendment does not entitle

M r. Lee to clairvoyant counsel. See United States v. Harms, 371 F.3d 1208, 1212

(10th Cir. 2004) (“The Sixth Amendment does not require counsel for a criminal

defendant to be clairvoyant.”); United States v. Carew, 140 Fed. App’x 15, 18

(10th Cir. 2005) (noting that failure to predict Booker’s holdings is not

objectively unreasonable). Accordingly, the district court’s conclusion that M r

Lee’s counsel was not ineffective is not reasonably debatable.

      W e DENY a COA and DISM ISS the appeal.


                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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