Michael Montez Porchia v. Larry Norris, Dir., Arkansas Dep't of Corr., 251 F.3d 1196 (8th Cir. 2001). · Go Syfert
Michael Montez Porchia v. Larry Norris, Dir., Arkansas Dep't of Corr., 251 F.3d 1196 (8th Cir. 2001). Cases Citing This Book View Copy Cite
33 citation events (33 in the last 25 years) across 9 distinct courts.
Strongest positive: Phillips v. Brewer (moed, 2025-04-14)
Treatment trajectory · 2001 → 2026 · click a year to view as-of
2001 2013 2026
Top citers, strongest first. 28 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Phillips v. Brewer
E.D. Mo. · 2025 · quote attribution · 1 verbatim quote · confidence high
the requirements of rule 4 are mandatory and jurisdictional, and thus we may not lightly overlook a potential timing defect.
discussed Cited as authority (verbatim quote) Jok v. City of Burlington
2d Cir. · 2024 · quote attribution · 1 verbatim quote · confidence high
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.
discussed Cited as authority (verbatim quote) Michelle Nogess v. Poydras Center, L.L.C.
5th Cir. · 2018 · quote attribution · 1 verbatim quote · confidence high
an appellant must prove that necessary preconditions to the exercise of appellate jurisdiction . . . have been fulfilled.
examined Cited as authority (verbatim quote) Chad Grady v. United States (3×) also: Cited as authority (rule)
8th Cir. · 2001 · quote attribution · 2 verbatim quotes · confidence high
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.
examined Cited as authority (verbatim quote) Chad Grady v. United States (3×) also: Cited as authority (rule)
8th Cir. · 2001 · quote attribution · 2 verbatim quotes · confidence high
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.
cited Cited as authority (rule) Bell v. State of South Dakota
D.S.D. · 2024 · confidence medium
Porchia v. Norris, 251 F.3d 1196, 1197 (8th Cir. 2001).
cited Cited as authority (rule) Bettelyoun v. United States
D.S.D. · 2024 · confidence medium
Porchia v. Norris, 251 F.3d 1196, 1198 (8th Cir. 2001).
discussed Cited as authority (rule) Moon v. Macke
E.D. Mo. · 2024 · confidence medium
Porchia v. Norris, 251 F.3d 1196, 1198 (8th Cir. 2001); See also Henderson-El, 180 F.3d 985 -986 (stating that neither the date a document is signed or the date that it is filed with the clerk aids a determination of whether a document was timely filed).
discussed Cited as authority (rule) The Wall Guy, Inc. v. FDIC
4th Cir. · 2024 · confidence medium
Thus, while in some cases we may “use liberal construction to rescue a facially deficient notice of appeal,” Diaz Aviation Corp., 716 F.3d at 262 , in others we may choose to hold an appellant to the burden of proving “that necessary preconditions to the exercise of appellate jurisdiction—including the timely filing of a notice of appeal—have been fulfilled,” Porchia v. Norris, 251 F.3d 1196, 1198 (8th Cir. 2001).
discussed Cited as authority (rule) The Wall Guy, Inc. v. FDIC
4th Cir. · 2024 · confidence medium
Thus, while in some cases we may “use liberal construction to rescue a facially deficient notice of appeal,” Diaz Aviation Corp., 716 F.3d at 262 , in others we may choose to hold an appellant to the burden of proving “that necessary preconditions to the exercise of appellate jurisdiction—including the timely filing of a notice of appeal—have been fulfilled,” Porchia v. Norris, 251 F.3d 1196, 1198 (8th Cir. 2001).
discussed Cited as authority (rule) The Wall Guy, Inc. v. FDIC
4th Cir. · 2024 · confidence medium
Thus, while in some cases we may “use liberal construction to rescue a facially deficient notice of appeal,” Diaz Aviation Corp., 716 F.3d at 262 , in others we may choose to hold an appellant to the burden of proving “that necessary preconditions to the exercise of appellate jurisdiction—including the timely filing of a notice of appeal—have been fulfilled,” Porchia v. Norris, 251 F.3d 1196, 1198 (8th Cir. 2001).
cited Cited as authority (rule) Valentine v. United States
D.S.D. · 2023 · confidence medium
See Nichols v. Bowersox, 172 F.3d 1068 , 1077 (8th Cir. 1999), abrogated on other grounds by Riddle v. Kemna, 523 F.3d 850 (8th Cir. 2008); Porchia v. Norris, 251 F.3d 1196, 1198 (8th Cir. 2001).
cited Cited as authority (rule) White v. United States
E.D. Mo. · 2023 · confidence medium
Porchia v. Norris, 251 F.3d 1196, 1198 (8th Cir. 2001).
discussed Cited as authority (rule) Clark v. Phelps County
E.D. Mo. · 2023 · confidence medium
“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.’” Porchia v. Norris, 251 F.3d 1196, 1198 (8th Cir. 2001) (quoting Fed.
discussed Cited as authority (rule) Trenisha Webster v. Jennifer Westlake
8th Cir. · 2022 · confidence medium
When a ruling on the merits of qualified immunity also resolves pendent claims, those issues are “inextricably intertwined” with qualified immunity; the issues are not inextricably intertwined if resolving each requires an “entirely different analysis.” Id. “[A]n appellant must prove that necessary preconditions to the exercise of appellate jurisdiction . . . have been fulfilled.” Porchia v. Norris, 251 F.3d 1196, 1198 (8th Cir. 2001); see also V S Ltd.
discussed Cited as authority (rule) Ficher v. Kent
E.D. La. · 2021 · confidence medium
The only evidence the Court has to consider regarding the date Plaintiff deposited his notice is the time stamp on the envelope, September 4, 2019, the day after the notice was due.14 A pro se prisoner has the burden to prove that he is entitled to benefit from the prison mailbox rule and that his pleadings were properly submitted for filing in a timely manner.15 If the prisoner meets his burden to prove the prison mailbox rule applies and that his submission is timely, the burden shifts to the Government to prove “untimeliness” 7 United States v. Duran, 934 F.3d 407, 413 (5th Cir. 2019). …
discussed Cited as authority (rule) Telford v. Bradeen
D.S.D. · 2019 · confidence medium
Findings “[A]n appellant must prove that the necessary preconditions to the exercise of appellate jurisdiction—including the timely filing of a notice of appeal—have been fulfilled.” Porchia v. Norris, 251 F.3d 1196, 1198 (8th Cir. 2001).
discussed Cited as authority (rule) Thomas Hurlow v. United States
7th Cir. · 2013 · confidence medium
See Ingram v. Jones, 507 F.3d 640, 644 (7th Cir.2007) (noting that the prison had a “separate legal mailing system”); United States v. Gray, 182 F.3d 762, 765 (10th Cir.1999) (requiring prisoners to use the legal mail system where a “prison maintains a legal mail system separate from its regular mail system”); Porchia v. Norris, 251 F.3d 1196, 1198 (8th Cir.2001) (noting that if a prison has “two internal mail systems, one for regular mail and another for legal mail,” the prisoner must use the legal mail system); 1998 Advisory Comm. Note to Fed.
discussed Cited as authority (rule) Gene Morrill v. Debra Corcoran
4th Cir. · 2013 · confidence medium
See Wheeling Hosp., Inc. v. Health Plan of the Upper Ohio Valley, Inc., 683 F.3d 577, 583-84 (4th Cir.2012) (party claiming appellate jurisdiction bears the burden of proving it); Porc-hia v. Norris, 251 F.3d 1196, 1198 (8th Cir.2001) ("[A]n appellant must prove that necessary preconditions to the exercise of appellate jurisdiction-including the timely filing of a notice of appeal-have been fulfilled.”).
discussed Cited as authority (rule) Alvin Martin v. Atty Gen USA
3rd Cir. · 2012 · confidence medium
Nor has he certified the date of delivery by declaration or notarized statement as provided by Rule 25(a)(2)(C). “[A]n appellant must prove that necessary preconditions to the exercise of appellate jurisdiction — including the timely filing of a notice of appeal—have been fulfilled.” Porchia v. Norris, 251 F.3d 1196, 1198 (8th Cir.2001).
discussed Cited as authority (rule) United States v. Duane Carter
8th Cir. · 2010 · confidence medium
Cf. Grady v. United States, 269 F.3d 913, 918 (8th Cir.2001) (holding in § 2255 context that “a district court may refuse to consider a prisoner’s Rule 4(c) affidavit due to a lengthy and unwarranted delay in submission”); Porchia v. Norri.s, 251 F.3d 1196, 1199 (8th Cir.2001) (“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.”).
discussed Cited as authority (rule) Herbert Council v. John Nash
3rd Cir. · 2010 · confidence medium
P. 4(c)(1) (“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.”); Porchia v. Norris, 251 F.3d 1196, 1198 (8th Cir.2001) (“[A]n appellant must prove that the necessary preconditions to the exercise of appellate jurisdiction — including the timely filing of a notice of appeal — have been fulfilled.”).
discussed Cited as authority (rule) Donald X. Brown v. Larry Norris
8th Cir. · 2004 · confidence medium
See Grady v. United States, 269 F.3d 913, 917, 919 (8th Cir.2001) (prisoner’s declaration or statement that he timely placed NOA in prison’s legal mail system need not accompany legal filing; remanding for district court to determine whether 28 U.S.C. § 2255 motion was timely filed under prison mailbox rule); Porchia v. Norris, 251 F.3d 1196, 1198 (8th Cir.2001) (inmate bears ultimate burden of proving his entitlement to benefit of prison mailbox rule).
cited Cited "see" Mahesh Reinholdson v. State of Minnesota
8th Cir. · 2003 · signal: see · confidence high
See Porchia v. Norris, 251 F.3d 1196, 1198 (8th Cir.2001).
cited Cited "see" MAHESH REINHOLDSON, PLAINTIFFS—APPELLANTS/CROSS v. STATE OF MINNESOTA, DEFENDANTS—APPELLEES/CROSS
8th Cir. · 2003 · signal: see · confidence high
See Porchia v. Norris, 251 F.3d 1196, 1198 (8th Cir. 2001). 11 Here, the district court's order is not a "clear and unequivocal manifestation" that it intended to end the case.
discussed Cited "see, e.g." Goodman v. Everett
4th Cir. · 2010 · signal: see also · confidence medium
See United States v. Ceballos-Martinez, 387 F.3d 1140, 1144-45 (10th Cir.2004); see also Porchia v. Norris, 251 F.3d 1196, 1198 (8th Cir.2001) (holding that, even in institutions with legal mail systems, declaration or notarized statement is still required).
cited Cited "see, e.g." Vernon Lee Pugh v. State of Minnesota
8th Cir. · 2010 · signal: see also · confidence medium
Browder v. Dir., Dep’t of Corr., 434 U.S. 257 , 265 n. 9, 98 S.Ct. 556 , 54 L.Ed.2d 521 (1978); see also Porchia v. Norris, 251 F.3d 1196, 1197 (8th Cir.2001).
discussed Cited "see, e.g." L. Romeo Hardin v. John Mathes
8th Cir. · 2009 · signal: see also · confidence medium
Co., 440 F.3d 920, 923 (8th Cir.2006) (jurisdictional issues will be raised sua sponte if there is indication jurisdiction is lacking; timely notice of appeal is mandatory and jurisdictional); see also Porchia v. Norris, 251 F.3d 1196, 1198 (8th Cir.2001) (inmate bears burden of proving his entitlement to benefit of prison mailbox rule); Burgs v. Johnson County, Iowa, 79 F.3d 701, 702 (8th Cir.1996) (per curiam) (untimely notice of appeal cannot serve as motion for extension of time to file appeal).
Retrieving the full opinion text from the archive…
Michael Montez PORCHIA, Appellant,
v.
Larry NORRIS, Director, Arkansas Department of Correction, Appellee
01-1981.
Court of Appeals for the Eighth Circuit.
May 24, 2001.
251 F.3d 1196
2001 U.S. App. LEXIS 10592
2001 WL 548836
Bowman, Beam, Bye.
Cited by 28 opinions  |  Published
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 court [1] 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 of appeal until April 5. Thus, Porchia’s appeal is untimely unless one of the exceptions in Rule 4(a)(1) applies.

[*1198] 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, 108 S.Ct. 2379, 101 L.Ed.2d 245 (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, 248 F.3d 1158, 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. Partnership v. Dep’t of Housing and Urban Dev., 235 F.3d 1109, 1112 (8th Cir.2000) (“The burden of proving 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, 936 F.2d 578, 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, 238 F.3d 415, 2000 WL 1815934 (4th Cir. Dec.12, 2000); cf. [*1199] Stuckey v. Greiner, 164 F.3d 619, 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 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, 162 F.3d 1172, 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.

Ill

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.

1

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