UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.TERRY J. MCINTYRE, JR., a/k/a “TMac,” a/k/a “Florida,” Defendant-Appellant. No. 13-3247 (D.C. Nos. 2:11-CV-02554-CM & 2:06-CR-20047-CM-JPO-3) (D. Kan.)

ORDER *

Before KELLY , HARTZ , and BACHARACH , Circuit Judges.
Terry J. McIntyre, Jr., seeks a certif icate of appealability (COA) to secure review of a district court order dismissing, for lack of subject matter jurisdiction, a motion for relief from judgment in a 28 U.S. C. § 2255 case. Because Mr. McIntyre has failed to show that he timely filed this appeal, “we lack juri sdiction to address his application for COA, or the merits of hi s appeal,” and must therefore dismiss the appeal. Watkins v. Leyba , 543 F.3d 624, 625 ( 10th Cir. 2008).

* This order is not binding precedent excep t under the doctrines of law of the case, res judicata, and colla teral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### January 21, 2014
Elisabeth A. Shumaker Clerk of Court- 2 - Appellate jurisdiction here turns on a pplication of the prison mailbox rule, now codified at Fed. R. App. P. 4(c)(1 ). Mr. McIntyre’s notice of appeal was received on September 30, 2013, six days la te (though a certificate of service stated that it was mailed on September 22). 1 Ordinarily, i.e., abse nt application of the mailbox rule, a notice of a ppeal is deemed filed upon receipt by the court. Houston v. Lack , 487 U.S. 266, 274 (1988). A timely no tice of appeal under Rule 4(a) and 28 U.S.C. § 2107(a) is, of course, a prerequisite to our appellate jurisdiction. 2
See Bowles v. Russell , 551 U.S. 205, 214 (2007). Accord ingly, this court issued an order noting the facial jurisdictional deficien cy, explaining that it could be obviated if Mr. McIntyre presented the notice of a ppeal to prison offi cials for mailing in timely fashion and complied with the requireme nts in Rule 4(c)(1) to establish that fact, and giving him 21 days to show cause w hy the appeal should not be dismissed. Rule 4(c)(1) provides that, for prisoners, the timely filing of a notice of appeal through use of a prison mail system “may be shown by a declaration in compliance with 28 U.S.C. § 1746 or by a notarized statem ent, either of whic h must set forth the date of deposit and state th at first-class postage has been prepaid.” We have repeatedly held that use of a prison’s regular internal mail system will not trigger this

1 Strictly speaking, Mr. McIntyre filed a COA application in this court rather than a notice of appeal in the district court as prescribed by Fed. R. App. P. 4(a)(1), but we liberally construed the COA application as a notice of appeal and sent it to the district court noting the date of receipt as the filing date under Fed. R. App. P. 4(d).

2 The deadlines in Rule 4( a) govern the time for app eal in § 2255 proceedings. See Rule 11(b) of the Rules Govern ing Section 2255 Proceedings.- 3 - mailbox rule if the latter re quirements are not satisfied, in which case the date of receipt by the court continues to control. 3 See, e.g. , Price v. Philpot , 420 F.3d 1158, 1167 (10th Cir. 2005) (mailbox rule inappli cable because declaration did not include “under penalty of perjury” language); United States v. Ceballos-Martinez , 387 F.3d 1140, 1142 (10th Cir. 2004) (dismissing appeal where notice of appeal failed to include declaration or notarized st atement satisfying Rule 4(c)(1)); United States v. Smith , 182 F.3d 733, 734 n.1 (10th Cir. 1999) (mailbox rule ina pplicable because declaration did not state that first-class postage had been pr epaid). The certificate of mailing attached to Mr. McIntyre’s noti ce of appeal clearly did not satisfy the requirements of Rule 4(c)(1), and he has never claimed that it did. Mr. McIntyre’s response to the show cause order takes two different tacks. 4 First, he contends our case law is contrary to the semi nal prison mailbox decision in
Houston . But our case law simply applies Rule 4(c)(1), which we have repeatedly noted incorporates and codifies the ruling in Houston , see Price , 420 F.3d at 1164; United States v. Gray , 182 F.3d 762, 766 n.7 (10th Cir. 1999). Second, he proffers a post hoc declaration, stating under penalty of perjury that he “filed [the notice of appeal] on September 22, 2013, by handing institutional staf f the legal documents.”

3 Use of a dedicated legal mail system is treated differently, but Mr. McIntyre has never claimed his prison ha s such a system, much less alleged he used it.

4 The pleading is designated “Appellant’s Request for Correction of Clear Error and a Manifest Error of Law and Fact in Reference to the Court’s Dismissal of the Appeal for Lack of Jurisdicti on, with Request for Reinstat ement of the Appeal.” We refer to it simply as “Response” herein.- 4 - Resp. at 3. This says nothi ng to confirm that first cl ass postage was prepaid, as required by Rule 4(c)(1), and therefore is insufficient to trigger the mailbox rule, see Smith , 182 F.3d at 734 n.1. It is the prison er’s burden to demons trate timely filing through operation of the rule, Price , 420 F.3d at 1165, and while a post hoc declaration may suffice, we ha ve held that the failure to file a qualifying declaration before we resolve the case de prives us of jurisdiction a nd requires dismissal of the appeal, Ceballos-Martinez , 387 F.3d at 1144 n.4. Applying our controlling precedent, we must dismiss this appeal. We nevertheless deem it appropria te to grant Mr. McIntyre’s motion to proceed in forma pauperis (IFP). Cf. Watkins , 543 F.3d at 627. The appeal is hereby dismisse d. Appellant’s motion to proceed IFP is granted. Entered for the Court

ELISABETH A. SHUMAKER, Clerk