UNITED STATES COURT 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 certificate 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 jurisdiction to address his 

application for COA, or the merits of his appeal,” and must therefore dismiss the 

appeal. Watkins v. Leyba, 543 F.3d 624, 625 (10th Cir. 2008). 

 

* This order is not binding precedent except under the doctrines of law of the 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

January 21, 2014

Elisabeth A. Shumaker 

Clerk of Court
- 2 - 

Appellate jurisdiction here turns on application 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 late (though a certificate of service stated 

that it was mailed on September 22).1

 Ordinarily, i.e., absent application of the 

mailbox rule, a notice of appeal is deemed filed upon receipt by the court. Houston 

v. Lack, 487 U.S. 266, 274 (1988). A timely notice 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). Accordingly, this court issued an 

order noting the facial jurisdictional deficiency, explaining that it could be obviated 

if Mr. McIntyre presented the notice of appeal to prison officials for mailing in 

timely fashion and complied with the requirements in Rule 4(c)(1) to establish that 

fact, and giving him 21 days to show cause why 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 statement, either of which must set forth the 

date of deposit and state that 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 appeal in § 2255 proceedings. 

See Rule 11(b) of the Rules Governing Section 2255 Proceedings. 
- 3 - 

mailbox rule if the latter requirements 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 inapplicable 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 statement satisfying Rule 4(c)(1)); United States v. 

Smith, 182 F.3d 733, 734 n.1 (10th Cir. 1999) (mailbox rule inapplicable because 

declaration did not state that first-class postage had been prepaid). The certificate of 

mailing attached to Mr. McIntyre’s notice 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 seminal 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 staff the legal documents.” 

 

3

 Use of a dedicated legal mail system is treated differently, but Mr. McIntyre 

has never claimed his prison has 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 Jurisdiction, with Request for Reinstatement of the Appeal.” We 

refer to it simply as “Response” herein. 
- 4 - 

Resp. at 3. This says nothing to confirm that first class 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 prisoner’s burden to demonstrate timely filing 

through operation of the rule, Price, 420 F.3d at 1165, and while a post hoc 

declaration may suffice, we have held that the failure to file a qualifying declaration 

before we resolve the case deprives us of jurisdiction and 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 appropriate to grant Mr. McIntyre’s motion to proceed in forma 

pauperis (IFP). Cf. Watkins, 543 F.3d at 627. 

The appeal is hereby dismissed. Appellant’s motion to proceed IFP is granted. 

 Entered for the Court 

 ELISABETH A. SHUMAKER, Clerk