UNITED STATES COURT OF APPEALS TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. GEORGE BRYAN WALTERS, Defendant - Appellant. No. 12-6320 (D.C. Nos. 5:11-CV-01388-C and 5:10-CR-00247-C-1) (W.D. Okla.)

ORDER

Before BRISCOE , EBEL and TYMKOVICH , Circuit Judges.

Defendant-Appellant George Walters seeks a certificat e of appealability (“COA”), see 28 U.S.C. § 2253(c), so he can appeal the di strict court’s denial of a Fed. R. Civ. P. 60(b) motion. Because Walters’s notice of a ppeal was untimely, we lack jurisdiction to consider his COA request. We, therefore, DISMISS this appeal. 1 I. Background Walters pled guilty to one count of po ssessing child pornography , in violation of 18 U.S.C. § 2252A(a)(5)(B). Walte rs did not file a direct appeal, but he did challenge his

1 We GRANT Walters’s motion to proceed on appeal in form a pauperis. See 28 U.S.C. § 1915; see also Watkins v. Leyba, 543 F.3d 624, 627 (10th Cir. 2008) (granting motion to proceed in forma pauperis even though the court dismi ssed the appeal for lack of jurisdiction). FILED United States Court of Appeals Tenth Circuit 

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Elisabeth A. Shumaker Clerk of Court2 conviction and sentence in a 28 U.S.C. § 2255 motion. The di strict court denied Walters § 2255 relief, and this court denied him a COA to challenge that determination on appeal, see United States v. Walters, 492 F. App’x 900, 901 (10t h Cir. 2012) (unpublished).

Thereafter Walters filed a Fed. R. Civ. P. 60(b) motion, again challenging his conviction

and sentence. The district court denied that motion. Several weeks later, Walters filed a second Rule 60(b) motion, whic h the district court again de nied. Here, Walters seeks a COA to appeal the district court’s deni al of his second Rule 60(b) motion. II. Analysis In order for this court to have jurisdic tion to consider Walters’s COA request, he had to file a notice of appeal within sixty da ys after the district court entered its order denying Walters’s second Rule 60(b) motion. See Fed. R. App. P. 4(a)(1)(B)(i); Watkins, 543 F.3d at 625-27. See generally Bowles v. Russell, 551 U.S. 205, 214 (2007) (“[T]he timely filing of a notice of appeal in a civil case is a jurisdic tional requirement.”).

Walters failed to do so. The district court denied the Rule 60(b) motion at issue here on October 17, 2012.

The district court received Walters’s notice of appeal on Decembe r 19, 2012, two days late. Because he is incarcerated, howeve r, Walters could benefit from the prison mailbox rule, Fed. R. App. P. 4(c)(1), which provides that a notice of appeal is timely if it is deposited in the in stitution’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 declar ation in compliance with 28 U.S.C. § 1746 or by a notarized stat ement, either of which mu st set forth the date of3 deposit and state that first cla ss postage has been prepaid. In response to this Court’ s jurisdictional inquiry, Walters, who bears the burden of establishing this Court’s jurisdiction, see Un ited States v. Ceballos-Martinez, 387 F.3d 1140, 1143 (10th Cir. 2004), submitted a documen t entitled “certificate of service.” In that document, Walters indicated that he ha d timely deposited his notice of appeal in the prison’s “internal mail system” on December 14, 2012, with prepai d postage. Assuming that the prison did not have a “system designed for legal mail,” Rule 4(c)(1) additionally required Walters to document that he depos ited his notice of appeal in the prison’s internal mail system by submitting “a declarati on in compliance with 28 U.S.C. § 1746 or by a notarized statement.” See Ceballos-Mar tinez, 387 F.3d at 1144-45. But Walters’s

“certificate of service” was not notarized. Nor did it comply with 28 U.S.C. § 1746 because it was not made under “penalty of pe rjury.” See Price v. Philpot, 420 F.3d 1158, 1165 n.6, 1166-67 (10th Cir. 2005). Walters’s “certificate of service,” theref ore, does not satisfy Fed. R. App. P. 4(c)(1)’s requirements. Without benefit of th at rule, his notice of appeal is untimely. We, therefore, lack jurisd iction to consider Walters’s request for a COA. Even if we had jurisdiction to consider that COA request, however, we would not grant Walters a COA or other relief. We ar e convinced that the district court has thoroughly considered all of Walters’s challenges to his conviction and sentence, and that

Walters’s claims do not entitle him to relief.4 III. Conclusion Because Walters’s notice of appeal was untimely, we DISMISS this appeal for lack of appellate jurisdiction.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge