United States v. Gray, 182 F.3d 762 (10th Cir. 06/29/1999)

[1] U.S. Court of Appeals, Tenth Circuit


[2] No. 98-6043


[3] 182 F.3d 762, 1999


[4] June 29, 1999


[5] UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
STEVEN GRAY, DEFENDANT-APPELLANT.


[6] APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA (D.C. No. CIV-97-744-A)


[7] Submitted on the briefs: Steven Gray, Pro Se. Patrick M. Ryan, United States Attorney, Frank Michael Ringer, Assistant U.s. Attorney, Oklahoma City, Oklahoma, for Plaintiff-Appellee.


[8] Before Porfilio, McKAY, and Lucero, Circuit Judges.


[9] The opinion of the court was delivered by: Lucero, Circuit Judge.


[10] PUBLISH


[11] Two issues, the claimed misapplication of the prison mailbox rule to the filing of a motion pursuant to 28 U.S.C. § 2255 and the effectiveness of counsel at the guilt and sentencing phases of appellant's proceedings, are brought to us for resolution. We conclude that in holding appellant's motion untimely, the district court misapplied the mailbox rule because the facility in which appellant was incarcerated maintains an inadequate system for processing legal mail. Nonetheless, we affirm the district court's denial of appellant's motion because he failed to demonstrate that his counsel was ineffective. *fn1


[12] Appellant Steven Gray pleaded guilty in February 1995 to conspiring "to possess with intent to distribute and to distribute 15 [later corrected to 14] ounces of cocaine base, `crack', a Schedule II controlled substance, in violation of Title 21, United States Code, Section 841(a)(1)." I R., Indictment at 1. Appellant was sentenced, inter alia, to 151 months' imprisonment based in part on the enhancement applicable to drug crimes involving crack cocaine. He did not take a direct appeal, and he is currently incarcerated in the Federal Correctional Institution in El Reno, Oklahoma. Proceeding pro se, appellant mailed the present motion seeking to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 in April of 1997. *fn2 The district court denied the motion as untimely on the basis that the motion should have been filed before April 24, 1997, see United States v. Simmonds, 111 F.3d 737, 746 (10th Cir. 1997), but was received by the court clerk on April 30. The district court rejected appellant's argument that the date of filing should be considered the day he allegedly mailed his motion, April 21, 1997, because he used the prison's regular mail system rather than its legal mail system. Alternatively, the district court concluded that appellant's claims fail on the merits. We previously granted appellant's request for a certificate of appealability. *fn3


[13] I.


[14] Because appellant's conviction became final in 1995, he had one year from the April 24, 1996, effective date of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, in which to file his § 2255 motion. See Simmonds, 111 F.3d at 746. According to the certificate of service attached to the motion, appellant placed his motion "in the institution's internal mailbox, first-class postage prepaid, on April 21, 1997, for filing with the Clerk, United States District Court." I R., Doc. 39. However, the envelope containing the motion was postmarked April 29, and stamped as received by the court clerk on April 30, and the motion was not filed by the district court until May 6. In responding to the motion, the government argued that it was untimely because it was not filed (or received) by the district court prior to the end of the one-year limitations period. The government also contended that appellant was not entitled to the benefit of the prison mailbox rule, in which the date of filing is the date a prisoner delivers legal mail to prison authorities for forwarding to the court clerk, see Houston v. Lack, 487 U.S. 266, 274-76 (1988), because he used the institution's regular mail system rather than its legal mail system. Relying on United States v. Leonard, 937 F.2d 494, 495 (10th Cir. 1991), the district court agreed and held that the motion was not timely filed. On appeal, appellant contends he should receive the benefit of the prison mailbox rule because the legal mail system used at El Reno does not log in all legal mail.


[15] In Leonard, we held that where a prison maintains a legal mail system separate from its regular mail system, a prisoner must use the legal mail system to be entitled to the benefit of the mailbox rule. See 937 F.2d at 495 ("A pro se prisoner who fails to take advantage of the special filing rule applicable to notices of appeal posted through the legal mail system foregoes the benefits of that system."). *fn4 Our analysis relied on Houston's reasoning that "the prison's legal mail system procedures, by which mail is logged in at the time and date it is received, provide a `bright line rule' for determining the date of a pro se prisoner's `filing.'" Id. Implicit in both Houston's and Leonard's analyses is the understanding that legal mail systems automatically log in all legal mail through relatively simple, straightforward procedures. Cf. Koch v. Ricketts, 68 F.3d 1191, 1193 (9th Cir. 1995) ("Houston assumed that a logging procedure was not only available for regular first class mail, but was also automatic."). It is the existence of such procedures that led to the Court's adoption of the mailbox rule to reduce disputes over when a pro se prisoner's papers are deemed filed:


[16] "[T]he rejection of the mailbox rule in other contexts has been based in part on concerns that it would increase disputes and uncertainty over when a filing occurred and that it would put all the evidence about the date of filing in the hands of one party. These administrative concerns lead to the opposite Conclusion here. The pro se prisoner does not anonymously drop his notice of appeal in a public mailbox-he hands it over to prison authorities who have well-developed procedures for recording the date and time at which they receive papers for mailing and who can readily dispute a prisoner's assertions that he delivered the paper on a different date. Because reference to prison mail logs will generally be a straightforward inquiry, making filing turn on the date the pro se prisoner delivers the notice to prison authorities for mailing is a bright-line rule, not an uncertain one." Houston, 487 U.S. at 275 (citation omitted).


[17] The legal mail system in force at El Reno does not satisfy Houston's and Leonard's implicit understanding that prison authorities log in all legal mail at the time it is received. As explained by its inmate systems manager, "[l]egal mail may be sent from this institution using certified mail or regular mail. Only legal mail sent by certified mail would be recorded." I R., Doc. 48, Ex. A at 1. Thus, the only time legal mail is logged in is when the prisoner pays the extra mailing fee to send it by certified mail, a practice the Ninth Circuit has found to be questionable. See Koch, 68 F.3d at 1193 ("There was no logging procedure available to Koch that did not involve an additional fee [through certified, registered or insured mail]. Yet Koch still faced the obstacles that motivated the Court to adopt the Houston rule in the first place: lack of control over the progress of this mailing, and the potential for interference by prison officials whose interests are adverse to the prisoner bringing a § 1983 suit.").


[18] The government does not argue that it can permissibly require an inmate to pay the additional costs applicable to certified mail before the inmate can benefit from the mailbox rule, *fn5 but contends that El Reno utilizes another adequate procedure to record the mailing of non-certified mail. This procedure provides that the following notification will be placed on the envelope of any non-certified legal mail:


[19] "P.O. Box 1000 El Reno, Oklahoma 73036 Date ____________"


[20] "The enclosed letter was processed through special mailing procedures for forwarding to you. The letter has been neither opened nor inspected. If the writer raised a question or problem over which [this] facility has jurisdiction, you may wish to return this material for further information and clarification. If the writer enclosed correspondence for forwarding to another addressee, please return the enclosure to the above address." I R., Doc. 48, Ex. A at 1-2. According to El Reno's inmate systems manager, "[t]he date the envelope was mailed from the institution would be placed in the above notification." Id. at 2 (emphasis added).


[21] While we do not entirely understand the purpose of this notification, we conclude that it does not necessarily indicate the date on which legal mail is presented to prison authorities, which is the pertinent information with respect to the mailbox rule, because the only date recorded is the date of mailing. Moreover, it does not render determination of the date of mailing a "straightforward inquiry" as Houston anticipated, but instead relies on the fortuity of the court preserving the envelope containing a prisoner's legal mail. *fn6


[22] We conclude that because El Reno's legal mail system does not provide a log or other record of the receipt by prison authorities of all legal mail sent from the facility, it does not meet the implicit requirements of Houston and Leonard. Appellant therefore should not be barred under Leonard from receiving the benefit of the mailbox rule. Because the only evidence of the date appellant gave his motion to prison authorities for mailing is his certificate of service, which contains a declaration in compliance with 28 U.S.C. § 1746, that he did so on April 21, appellant's motion was timely. *fn7


[23] II.


[24] We turn to the merits. Appellant contends his counsel was constitutionally ineffective during his plea colloquy and at sentencing for essentially the same reason-for failing to put the government to its burden of proving that the conspiracy for which appellant was convicted involved the form of cocaine known as "crack," on which appellant's sentence was based, instead of cocaine powder. Because the sentence for crack is significantly stiffer than for cocaine powder, see, e.g., United States v. Brooks, 161 F.3d 1240, 1247 (10th Cir. 1998) (noting that "for purposes of calculating a defendant's base offense level, the Sentencing Guidelines equate one gram of crack to 100 grams of powder cocaine"), and the government has the burden at sentencing of proving the drug involved, see United States v. Glover, 97 F.3d 1345, 1347 (10th Cir. 1996); United States v. James, 78 F.3d 851, 858 (3d Cir. 1996), appellant contends his counsel was ineffective for failing to put the government to its burden. See Glover, 97 F.3d at 1349. Appellant also argues that his counsel's deficient performance at the plea colloquy somehow made his plea involuntary.


[25] To prove his counsel was constitutionally ineffective, appellant must show that his counsel's performance was deficient and he was prejudiced by the deficiency. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Glover, 97 F.3d at 1349-50. To the extent appellant contends his counsel's ineffectiveness made his guilty plea involuntary, he must show that had counsel performed effectively, he would not have pleaded guilty and would have proceeded to trial. See Hill v. Lockhart, 474 U.S. 52, 58-59 (1985). To prevail in his contention that counsel should have advised him of a potential defense, appellant must show that the defense likely would have prevailed at trial. See id. at 59.


[26] Appellant was convicted of conspiring to possess and distribute a controlled substance. See 21 U.S.C. §§ 841(a), 846. His conviction was not predicated on whether the particular controlled substance was crack or cocaine powder, see § 841(a); that distinction is only relevant for sentencing purposes under § 841(b)(1)(A) and U.S.S.G. § 2D1.1. Cf. Glover, 97 F.3d at 1347 (discussing difference between conviction for methamphetamine and sentencing for particular type of methamphetamine). Appellant admits that the substance involved was either crack or cocaine powder, and he does not contend that he would have pleaded innocent had his counsel not "failed to object to the ambigous [sic] terms of the factual basis of the plea during the colloquy." Appellant's Mem. of Law in Supp. of Mot. for Certificate of Appealability at 10. Although appellant contends that his counsel failed to advise him of the mandatory minimum sentence for a conviction under Count One of the indictment-an allegation belied by the record *fn8 -he does not allege he would not have pleaded guilty had he known of the disparate sentences for crack and cocaine powder. We thus reject appellant's claim that his counsel's failure to request the government preliminarily to prove a sentencing matter somehow made his plea involuntary. See Hill, 474 U.S. at 58.


[27] At sentencing, the government has the burden of proving the type of drug involved to enhance a sentence over that provided by the conviction itself. See Glover, 97 F.3d at 1347. Although appellant's counsel did not put the government to its burden at sentencing, by that time it was too late. Count One of the indictment specified "cocaine base, `crack,'" and appellant pleaded guilty to that count. Earlier, he had admitted in his Petition to Enter Guilty Plea that he had conspired to possess and distribute "crack cocaine base (crack)," I R., Doc. 31 at 7, and admitted at his plea hearing that he dealt with crack, see I R., Doc. 48, Ex. B at 5-6. *fn9 These admissions relieve the government of any burden it had at sentencing to show that the drug involved was crack. Cf. Glover, 97 F.3d at 1347 ("We emphasize that neither the indictments nor the pleas in this case went beyond the requisite statutory elements by specifying the type of methamphetamine involved; if they had, subsequent (re)litigation of the issue might well have been precluded.") (citations omitted); see also United States v. Bush, 70 F.3d 557, 562-63 (10th Cir. 1995) (defendant's admissions in plea agreement and at plea hearing and trial of co-conspirators sufficient to support sentence based on crack).


[28] Perhaps appellant argues that his counsel was ineffective in recommending that he plead guilty to Count One as written, thereby admitting a sentencing factor not necessary for conviction and which in turn relieved the government of its burden at sentencing. If that be the case, it is appellant's burden to prove counsel's deficient performance prejudiced him, see Strickland, 466 U.S. at 687. Because he claims that he should not have been sentenced for possession of crack, he must prove that the drugs central to his conviction were not crack, cf. Hill, 474 U.S. at 59 (where ineffectiveness claim based on failure to advise of potential defense, prejudice inquiry turns on likelihood of success of defense). *fn10 Having failed to claim the existence of evidence that the drug involved was not crack, appellant cannot meet the prejudice prong of his ineffective counsel claim.


[29] Although the district court incorrectly held that appellant's motion was untimely, it correctly found that his motion fails on the merits. Therefore, the district court's judgment is AFFIRMED.



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Opinion Footnotes

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[30] 1After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.


[31] 2There is a dispute regarding the exact date of mailing.


[32] 3We grant appellant's motion to file a reply brief.


[33] 4The rule created in Houston and interpreted in Leonard applied to the filing of notices of appeal, and derived from the fact that, unlike counseled litigants who may take measures to ensure timely filings, "a prisoner acting pro se has no choice but to entrust his mail to prison officials and cannot adequately follow up on misdirected mail." Leonard, 937 F.2d at 495. Courts including this one have extended the rule to a variety of other situations involving the timeliness of pro se prisoner filings, see, e.g., Dunn v. White, 880 F.2d 1188, 1190 (10th Cir. 1989) (applying rule to objections to magistrate Judge's report in civil rights case), including the filing of habeas corpus petitions under 28 U.S.C. §§ 2254 and 2244(d), see Hoggro v. Boone, 150 F.3d 1223, 1226 n.3 (10th Cir. 1998); see also Nichols v. Bowersox, 172 F.3d 1068, 1074-77 (8th Cir. 1999) (en banc); Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998); Burns v. Morton, 134 F.3d 109, 112-13 (3d Cir. 1998). Because the concerns over a prisoner's ability to ensure timely filing apply equally to a § 2255 motion, we see no reason why it should not apply here, given the proper circumstances. The government does not argue to the contrary.


[34] 5It may well avoid this tack due to potential access-to-court problems. Although not directly analogous, an indigent prisoner's right of access to the courts does not require provision of unlimited free postage for sending legal mail. See Twyman v. Crisp, 584 F.2d 352, 359 (10th Cir. 1978). Nonetheless, we are unaware of any case law permitting an institution to require use of a form of mailing more expensive than first class mail before the mailbox rule applies to an inmate's legal mail.


[35] 6We note that while the government has explained how the El Reno procedures for handling legal mail work, it has not attempted to explain why the institution utilizes such seemingly convoluted procedures. On the other hand, appellant has not explained why he did not use the legal mail system.


[36] 7This Conclusion makes it unnecessary for us to determine whether Leonard was good law at the time appellant mailed his motion. For purposes of consistency, we have presumed that Leonard's restriction on the application of the mailbox rule, which involved a notice of appeal, would apply equally to the instant § 2255 motion. However, when the Federal Rules of Appellate Procedure essentially codified the Houston rule in 1993 in Rule 4(c), see Advisory Committee Notes regarding 1993 Amendment, they may have superseded Leonard. That rule, which was unchanged at the time of the relevant events here, provided as follows: If an inmate confined in an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely filed if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a notarized statement or by a declaration (in compliance with 28 U.S.C. § 1746) setting forth the date of deposit and stating that first-class postage has been prepaid. Rule 4(c) (effective December 1, 1993). The Ninth Circuit concluded that this rule essentially superseded its case law analogous to Leonard. See Koch, 68 F.3d at 1193; see also Thomas v. Gish, 64 F.3d 323, 325 (7th Cir. 1995). As written, the rule does not require use of any particular mail system as long as there is a proper statement or declaration indicating timely deposit with prison authorities. Effective December 1998, Rule 4(c) was further amended to add a limitation similar to that provided by Leonard. The following sentence was added in between the two sentences quoted above (along with editorial changes to the second sentence): "If an institution has a system designed for legal mail, the inmate must use that system to receive the benefit of this rule." Rule 4(c) (effective December 1, 1998); see also Nichols, 172 F.3d at 1077 n.5.


[37] 8Prior to and at the plea hearing, appellant admitted he knew that there was a ten-year mandatory minimum for conviction under that count of the indictment.


[38] 9Later at the plea hearing when discussing the factual basis for the plea, the parties and court used the words "cocaine base" and "cocaine" as well as "crack." In light of appellant's earlier explicit admissions that the substance was "crack," this later colloquy does not undermine the evidence that it was crack.


[39] 10We emphasize that, even though appellant is challenging the ultimate effect of counsel's assistance on his sentence, we are examining counsel's performance at the guilty plea stage. We are not dealing with a pure sentencing matter as we were in Glover, where counsel failed to put the government to its burden at sentencing, and we therefore did not require the appellant to prove his conviction was based on the drug producing the lesser sentence to prove prejudice. See Glover, 97 F.3d at 1349-50.

Morales-Rivera v. United States of America, 184 F.3d 109 (1st Cir. 08/25/1999)

[1] U.S. Court of Appeals, First Circuit


[2] No. 98-2073


[4] August 25, 1999


[5] AGUSTIN MORALES-RIVERA, PLAINTIFF, APPELLANT,
v.
UNITED STATES, DEFENDANT, APPELLEE.


[6] Agustin Morales-Rivera on brief pro se. Guillermo Gil, United States Attorney, Miguel A. Fernandez, Assistant U.S. Attorney, and Lisa E. Bhatia Gautier, Assistant U.S. Attorney, on brief for appellee.


[7] Before Boudin, Circuit Judge, Campbell, Senior Circuit Judge, and Stahl, Circuit Judge.


[8] The opinion of the court was delivered by: Per Curiam.


[9] APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Raymond L. Acosta, U.S. District Judge]


[10] We are presented with the issue of whether the prisoner mailbox rule applies to the filing of motions under 28 U.S.C. § 2255 and § 2254. We hold that a pro se prisoner's motion under 28 U.S.C. § 2255 or § 2254 is filed on the date that it is deposited in the prison's internal mail-system for forwarding to the district court, provided that the prisoner utilizes, if available, the prison's system for recording legal mail. *fn1


[11] In 1992, the appellant pled guilty to drug charges and was sentenced to 151 months in prison. On August 5, 1997, the district court received his motion to vacate sentence under 28 U.S.C. § 2255 alleging, inter alia, ineffective assistance of appellate counsel and sentencing errors. Without deciding the merits, the district court dismissed the motion as untimely because it was not filed within one-year of the effective date of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), April 24, 1996.


[12] The appellant moved for reconsideration. He asserted that although his motion was received by the district court three-months after the deadline, the motion was timely filed under the prisoner mailbox rule because he placed it "first-class postage prepaid in the institution's internal mail system before the last day of filing."


[13] The district court denied the motion. It acknowledged that in certain cases pro se prisoners' pleadings are deemed filed when submitted to prison authorities for mailing to the district court. Houston v. Lack, 487 U.S. 266, 108 S. Ct. 2379 (1988); Reid v. State of New Hampshire, 56 F.3d 334, 340 n. 16 (1st Cir. 1995). Nonetheless, it concluded that as a matter of law the prisoner mailbox rule governs only pleadings with filing periods which are shorter than AEDPA's one-year period. We granted a certificate of appealability on the issue of the timeliness of the appellant's § 2255 motion. *fn2


[14] In Houston, the Supreme Court held that a pro se prisoner's notice of appeal is filed on the date that it is submitted to prison officials for forwarding to the district court, rather than on the date that it is received by the clerk. The Court reasoned that the moment of filing was not specified in the procedural rules governing notices of appeal. The prisoner mailbox rule fosters parity between pro se prisoners and other litigants and furthers the policies which generally inform the concept of filing. Pro se prisoners have no choice but to rely for filing on prison authorities and the postal service. They cannot monitor delivery processes or take independent, remedial measures to ensure timeliness when the mail goes awry. Their isolation impairs their ability to prove, where applicable, that delays are due to prison authorities or clerical error. In short, unlike other litigants, they cannot ensure that their pleadings will be recognized as timely by the district court no matter how promptly and diligently they act.


[15] In addition, definitions of filing reflect pragmatic desiderata, including, the need to limit factors affecting timeliness to those within litigants' control and the need to discourage disputes about filing-dates. Pro se prisoners loose control over their pleadings upon submission to the warden. Reliance on the date of submission to determine the time of filing minimizes uncertainty, given prison procedures for logging legal-mail.


[16] These considerations apply with equal force to § 2255 and § 2254 motions. Unlike represented prisoners or non-incarcerated convicts, pro se prisoners have no choice but to rely for filing upon prison and postal authorities over whom they exercise no control. They cannot ensure that their motions will be received by the clerk on time no matter how diligently or far in advance they act. The mailbox rule helps ensure equal access to the courts and functionally equivalent time-bars for pro se prisoners. See Alves v. Matesans, 20 F. Supp. 2d. 135, 137 (D. Mass. 1998)(finding no practical or principled justification for refusing to apply the prisoner mailbox rule to a petition under 28 U.S.C. § 2254); Piacentini v. Levangie, 998 F. Supp. 86, 87 (D. Mass. 1998)(§ 1983 complaint with a 3-year limitations period was timely-filed under Fed. Rule Civ. P. 5 when sent through the prison's legal-mail system).


[17] Other circuits which have considered the issue have applied the prisoner mailbox rule to motions under 28 U.S.C. § 2254 or § 2255. *fn3 Although Allen v. Dowd, 964 F.2d 745 (8th Cir. 1992), has been invoked for the proposition that the mailbox rule governs only short filling-deadlines, after the district court issued its opinion in the present case, the Eighth Circuit ruled that Dowd does not survive AEDPA. Nichols v. Bowersox, 172 F.3d 1068 (8th Cir. 1999)(until AEDPA established a limitations period for § 2254 petitions, Houston's concerns about the special hurdles faced by pro se prisoners in meeting filing deadlines were irrelevant).


[18] We agree that there is no practical or principled justification for refusing to apply the prisoner mailbox rule to the filing of motions under 28 U.S.C.§ 2255 and § 2254. We vacate the judgment of the district court and remand for a determination of whether the appellant deposited his petition in the prison's internal mail system by the deadline using, if available, the prison's legal-mail system. *fn4


[19] Vacated and remanded.



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Opinion Footnotes

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[20] *fn1 The question of whether a § 2254 petition should be deemed to comply when so deposited, if it is not also accompanied by the required fee, is a matter we do not address because it has no bearing on the outcome of this case.


[21] *fn2 After the certificate was granted, we decided one of the issues presented by recognizing that prisoners convicted before AEDPA's effective date have one-year thereafter in which to file their § 2255 motions. Rogers v. United States, F.3d (June 17, 1999).


[22] *fn3 See Peterson v. Demskie, 107 F.3d 92 (2nd Cir. 1997)(dictum)(§ 2254 petition); Burns v. Morton, 134 F.3d 109 (3rd Cir. 1998); Spotville v. Cain, 149 F.3d 374 (5th Cir. 1998)(per curiam)(§ 2254 petition); Sonnier v. Johnson, 161 F.3d 941, 944 (5th Cir. 1998)(per curiam)(§ 2254 petition); In re Sims, 111 F.3d 45, 47 (6th Cir. 1997)(§ 2255 and § 2244(b)(3)); Jones v. Bertrand, 171 F.3d 499 (7th Cir. 1999)(§ 2254 petition); Nichols v. Bowersox, 172 F.3d 1068 (8th Cir. 1999); Adams v. United States, 173 F.3d 1339 (11th Cir. 1999)(per curiam)(§ 2255 petition).


[23] *fn4 Nothing in this opinion is designed to prevent the government from contending, if this is its position, that the appellant did not utilize the prison mail system at all or, if available, did not use the prison's system for recording legal mail. Similarly, it is free to argue, if this is its position, that the original filing was not properly addressed due to the appellant's negligence, that no properly addressed filing was deposited in the prison mail system prior to the deadline, and that the appellant should be debarred under these circumstances from obtaining the benefit of the mailbox rule. As these issues have not been fully developed, we express no opinion whatever about their proper resolution.

Miles v. Prunty, 187 F.3d 1104 (9th Cir. 08/13/1999)

[1] U.S. Court of Appeals, Ninth Circuit


[2] No. 98-55623


[4] August 13, 1999


[5] WILLIE LEE MILES, PLAINTIFF-APPELLANT,
v.
K.W. PRUNTY, WARDEN; ATTORNEY GENERAL OF THE STATE OF CALIFORNIA, DEFENDANTS-APPELLEES.


[6] D.C. No. CV-97-04414-CBM


[7] Counsel William L. Harris, Pasadena, California, for the petitionerappellant. Kent Jamil Bullard, Deputy Attorney General, Los Angeles, California, for the respondent-appellee.


[8] Before: James R. Browning, Sidney R. Thomas, and Kim McLane Wardlaw, Circuit Judges.


[9] The opinion of the court was delivered by: Wardlaw, Circuit Judge


[10] FOR PUBLICATION


[11] (RC)


[12] OPINION


[13] Appeal from the United States District Court for the Central District of California Consuelo B. Marshall, District Judge, Presiding


[14] Argued and Submitted June 7, 1999--Pasadena, California


[15] Opinion by Judge Wardlaw


[16] OPINION


[17] Willie Lee Miles ("Miles") appeals the district court's dismissal of his 28 U.S.C. S 2254(a) habeas corpus petition as untimely. Miles raises two issues on appeal, only one of which we reach. Miles contends his petition was timely filed under the prison mailbox rule, and in the alternative, that extraordinary circumstances existed sufficient to equitably toll the applicable statute of limitations. We have jurisdiction pursuant to 28 U.S.C. SS 1291 and 2253 and we reverse.


[18] I.


[19] We review a district court's decision to dismiss a petition for writ of habeas corpus de novo. See Fields v. Calderon, 125 F.3d 757, 759-60 (9th Cir. 1997), cert. denied, 118 S. Ct. 1826 (1998). We also review de novo the district court's dismissal of Miles' habeas petition on statute of limitations grounds. See Ellis v. City of San Diego, 176 F.3d 1183, 1188 (9th Cir. 1999); Hernandez v. City of El Monte , 138 F.3d 393, 398 (9th Cir. 1998). While findings of fact made by the district court are reviewed for clear error, see Moran v. McDaniel, 80 F.3d 1261, 1268 (9th Cir. 1996), where, as here, the facts are undisputed as to the question of equitable tolling, we review de novo, see Valenzuela v. Kraft, Inc., 801 F.2d 1170, 1172 (9th Cir. 1986).


[20] II.


[21] The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") became law on April 24, 1996 and imposed for the first time a statute of limitations on habeas petitions filed by state prisoners. See Calderon v. United States Dist. Court (Beeler), 128 F.3d 1283, 1288-89 (9th Cir. 1997)[hereinafter "Calderon (Beeler)"], overruled in part on other grounds by Calderon v. United States Dist. Court (Kelly), 163 F.3d 530 (9th Cir. 1998) (en banc), cert. denied, 119 S. Ct. 1377 (1999) [hereinafter "Calderon (Kelly)"]. We have held that AEDPA's limitations period did not begin to run against any state prisoner before the date of AEDPA's enactment. See Calderon (Beeler), 128 F.3d at 1286-87 (rejecting retroactive application of AEDPA's one-year statute of limitations). Accordingly, a prisoner with a state conviction finalized before April 24, 1996, such as Miles, had until April 23, 1997 to file a federal habeas petition.


[22] III.


[23] Following his December 31, 1991 conviction for first degree murder in Los Angeles Superior Court, Miles received a sentence of forty years to life in prison. The California Court of Appeal affirmed Miles' sentence on September 1, 1993 and review was denied by the California Supreme Court on November 23, 1993.


[24] On April 1, 1997, just twenty-two days before his federal habeas corpus rights would forever be extinguished, Miles' state appellate counsel advised him that if he wished to file a S 2254 habeas corpus petition, he needed to do so on or before April 23, 1997, to be timely under AEDPA. Miles signed his habeas petition and in forma pauperis declaration on April 17, 1997.*fn1


[25] On April 18, 1997, Miles submitted his completed petition and in forma pauperis declaration to state prison authorities, with instructions to mail his materials to the district court and to enclose a check drawn from his prison trust account for the requisite $5.00 filing fee. The prison's outgoing mail log for Miles contains an April 18, 1997 entry of: "U.S.D.C. Cen. D. of CA," and an accompanying notation of: "sent to acct [sic] for fee filing."


[26] On April 23, 1997, the one-year statute of limitations for Miles' petition under AEDPA expired. At that time, prison authorities had neither issued the check nor sent Miles' materials to the district court. The $5.00 amount was not debited from Miles' prison trust account until April 30, 1997. Prison authorities then returned the petition and check to Miles on an unspecified date.


[27] On June 3, 1997, Miles resubmitted his petition and in forma pauperis declaration, together with the $5.00 filing fee, to prison authorities for mailing. The outgoing mail log identifies the district court as the addressee of Miles' materials. Miles' petition for habeas corpus was stamped as "Lodged" with the district court on June 3, 1997. It was stamped as "Filed" on June 17, 1997.


[28] IV.


[29] On August 19, 1997, Respondent K.W. Prunty moved to dismiss Miles' petition as time-barred under AEDPA's oneyear statute of limitations. Respondent further asserted that Miles had failed to exhaust his state court remedies as to all claims.


[30] On September 4, 1997, the Magistrate Judge ordered Miles to file, within fifteen days, evidence of the date on which he had delivered his habeas petition to prison authorities for mailing to the Clerk of the Court. On September 29, 1997, Miles filed a document with the district court, entitled "Denial and Reply," which included Miles' own declaration that he had submitted his habeas petition to prison authorities on April 17, 1997, with instructions to attach a $5.00 filing fee and to mail the petition directly to the district court. Miles failed to attach a copy of the prison mail log to his declaration.


[31] On October 23, 1997, the Magistrate Judge issued a Report and Recommendation ("Report"), concluding that: (1) Miles' habeas petition was due on or before April 23, 1997; (2) the petition was not filed until June 17, 1997; (3)"no legal authority" existed to toll the statute of limitations while awaiting a filing fee check from prison authorities; and (4) no "extraordinary circumstances" had been presented to justify equitable tolling. Miles filed timely objections to the Report on November 18, 1997. Together with his objections, Miles submitted a copy of the prison mail log that had previously been requested by the Magistrate Judge.


[32] The final Report issued on December 18, 1997, recommending that the district court find that: (1) Miles had submitted "a legal document" to prison authorities on April 18, 1997, to obtain a filing fee; and (2) on June 3, 1997, Miles had submitted his petition to prison authorities to send to the district court for filing. The report noted that while the prison


[33] "mailbox rule," established in Houston v. Lack, 487 U.S. 266, 270 (1988), applied to habeas petitions filed under AEDPA, Miles had not met its requirements as a factual matter.*fn2 The final Report recommended that Miles' habeas petition be dismissed as untimely.


[34] On December 29, 1997, the district court adopted the recommendations set forth in the final Report. Miles filed a timely notice of appeal. Thereafter, a motions panel of this Court issued a certificate of appealability, limited to the question whether extraordinary circumstances existed to warrant equitable tolling of the statute of limitations period as set forth in 28 U.S.C. S2244(b)(1).


[35] V.


[36] Miles contends the doctrine of equitable tolling precludes a finding that his habeas petition was time-barred. We agree.


[37] We will permit equitable tolling of AEDPA's limitations period "only if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time." Calderon (Kelly), 163 F.3d at 541 (citing AlvarezMachain v. United States, 107 F.3d 696, 701 (9th Cir. 1996), cert. denied, 118 S. Ct. 60 (1997)); Calderon (Beeler), 128 F.3d at 1288-89 (same). When external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely claim, equitable tolling of the statute of limitations may be appropriate. See Calderon (Kelly), 163 F.3d at 541; Calderon (Beeler), 128 F.3d at 1288-89.


[38] We have addressed equitable tolling of AEDPA's statute of limitations in only two opinions -- Calderon (Beeler) and Calderon (Kelly). In Calderon (Beeler), a death penalty case, we affirmed the district court's decision to equitably toll the statute because Beeler's lead counsel had withdrawn after accepting employment in another state and left behind an unuseable work product for replacement counsel, i.e., a turn of events over which Beeler had no control. 128 F.3d at 128889. Similarly, in Calderon (Kelly), another death penalty case, we found the petitioner's mental incompetency --"a condition that is, obviously, an extraordinary circumstance beyond the prisoner's control" -- rendered the petitioner unable to assist his attorney in the preparation of his petition, and therefore served to equitably toll the statute of limitations until after the district court made a competency determination.


[39] Here, as an incarcerated pro se litigant, Miles depended on prison authorities to draw on his trust account and to prepare a check for the filing fee. He further relied on these same authorities to mail his check and petition to the district court. Once Miles made his request, any delay on the part of prison officials in complying with Miles' instructions was not within Miles' control.


[40] Nor did Miles fail to exercise due diligence in preparing and submitting his petition. Within seventeen days after his counsel informed him of the looming deadline, Miles submitted his petition to prison authorities. Five days later, on April 23, 1997, the one-year statute of limitations expired.


[41] Once the check had finally been issued, prison authorities returned both the check and petition directly to Miles, rather than mailing these materials to the district court as Miles had instructed. Miles was therefore forced to resubmit his petition and filing fee to prison authorities for mailing on June 3, 1997.


[42] Although equitable tolling is unavailable in most cases, see Calderon (Beeler), 128 F.3d at 1288, we find the doctrine applicable here. Accordingly, the district court's order dismissing Miles' petition as untimely is reversed and the case remanded for proceedings consistent with this decision.


[43] REVERSED AND REMANDED.



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Opinion Footnotes

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[44] *fn1 As noted in the final Report and Recommendation, Miles appears to confuse in forma pauperis status with paying a filing fee. The record reflects that Miles' petition was in fact accompanied by a $5.00 filing fee; accordingly, Miles is not proceeding in forma pauperis.


[45] *fn2 Miles argues his petition may be deemed timely filed under the prison mailbox rule because he delivered the petition to prison authorities for mailing before the limitations period expired. Because this issue was not the subject of the certificate of appealability granted pursuant to 28 U.S.C. S 2253, and Miles did not move this panel to broaden the scope of the certificate of appealability, the issue is not properly before us. See 28 U.S.C. S 2253(c)(1); 9th Cir. R. 22-1 advisory committee note. We note, however, that the mailbox rule would appear to apply to Miles' habeas petition, and recognize that a majority of our sister circuits has determined that the rule applies to habeas petitions filed under AEDPA. See, e.g., Jones v. Bertrand, 171 F.3d 499, 502 (7th Cir. 1999) (concluding that the "Houston mailbox rule should be extended to prisoners filing pro se habeas petitions, and, for statute of limitations purposes, a petition is deemed filed when given to the proper prison authorities and not when received by the district court clerk"); Nichols v. Bowersox, 172 F.3d 1068, 1077 (8th Cir. 1999) (same); Spotville v. Cain , 149 F.3d 374, 378 (5th Cir. 1998) (holding that "a pro se prisoner's habeas petition is filed, for purposes of determining the applicability of the AEDPA, when he delivers the papers to prison authorities for mailing"); Burns v. Morton, 134 F.3d 109, 113 (3d Cir. 1998) (same); Hoggro v. Boone, 150 F.3d 1223, 1226 n.3 (10th Cir. 1998) (same); In re Sims, 111 F.3d 45, 47 (6th Cir. 1997) (same); see also Peterson v. Demskie, 107 F.3d 92, 93 (2d Cir. 1997) (implying that a S 2254 petition would be considered filed when handed to prison authorities for mailing).