Gray v . NHSP Warden 07-CV-077-SM 06/25/08 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Vernon Gray, Petitioner
v. Civil N o . 07-cv-77-SM Opinion N o . 2008 DNH 122 Bruce Cattell, Warden, New Hampshire State Prison, Respondent
O R D E R
The court of appeals treated petitioner’s “Petition for Writ
of Habeas Corpus” filed in that court, and seeking “de novo
review” of this court’s earlier denial of that same petition, as
a notice of appeal. See Fed. R. App. P. 4(d) (a notice of appeal
mistakenly filed in the court of appeals is treated as having
been filed in the district court on the date it was received by
the appellate court). Accordingly, this court docketed the
“notice of appeal” as of April 1 4 , 2008.
Timeliness of Appeal
Judgment denying the original petition was entered in this
court on March 5 , 2008. S o , petitioner had until April 5 , 2008,
to file a timely notice of appeal. Fed. R. App. P. 4(a)(1)(A).
His “notice of appeal” facially appears to have been filed about
nine days too late. But, petitioner is a prisoner, and the “notice of appeal”
apparently was signed on March 1 7 , 2008, well before the thirty
day period expired. Under the “mail rule,” a notice of appeal
filed by an inmate confined in an institution is deemed to have
been timely filed when it is deposited in the institution’s
internal mail system on or before the last day for filing. Fed.
R. App. P. 4 ( C ) . Unfortunately, the record in this case is both
undeveloped and unclear with respect to that critical point —
petitioner is silent and respondent overlooks Fed. R. App. P.
4(d) in focusing his argument on the erroneous proposition that
the “mail rule” only applies if a notice of appeal is mailed to
the correct court. Houston v . Lack, 487 U.S. 266 (1988), cited
by respondent, does not suggest such a conclusion.
Actually, Houston fully recognizes that it is prison
authorities who are in the best position to resolve doubts about
timeliness under the mail rule:
Because reference to prison mail logs will generally be a straightforward inquiry, making filing turn on the date the pro se prisoner delivers notice to prison authorities for mailing is a bright-line rule, not an uncertain one. * * * The prison will be the only party with access to at least some of the evidence needed to resolve such questions — one of the vices the general rule is meant to avoid — and evidence on any of these issues will be hard to come by for the prisoner confined to his cell, who can usually only guess whether the prison authorities, the Postal Service, or the court clerk is to blame for any delay.
2 Id., at 275-276. Gray’s “notice of appeal” was given to prison
authorities to mail sometime after March 17 (when it was signed),
and before April 1 4 , 2008 (when it was received by the court of
appeals), and it seems eminently plausible that it was given to
prison authorities for mailing before April 5 , 2008. It is
hardly unusual for this court to receive pleadings mailed by
prisoners well after they are signed and beyond the time one
would expect due to normal postal delays. Respondent’s failure
to refer to or produce any mail logs showing when the “notice”
was received or mailed by prison authorities is perhaps telling
in that regard.
In any event, the critical facts related to timeliness need
to be developed, considered, and the timeliness issue decided.
See Morales-Rivera v . United States, 184 F.3d 109 (1st Cir.
1999); Allen v . Culliver, 471 F.3d 1196 (11th Cir. 2006).
Accordingly, on or before July 2 5 , 2008, petitioner shall file a
declaration in compliance with 28 U.S.C. § 1746, or a notarized
statement, setting forth the date he placed the petition (the one
sent to the court of appeals) in the institution’s system
designed for legal mail. See Fed. R. App. P. 4(c)(1).
And, on or before July 2 5 , 2008, respondent shall file a
supplemental pleading disclosing mail log or other business
3 record entries pertinent to petitioner’s filing of the “notice of
appeal.”
Extension of Time in Which to File Notice of Appeal
Respondent concedes that petitioner filed a timely
precautionary motion to extend the time in which to file a notice
of appeal, as suggested by the court of appeals. Fed. R. App. P.
4(a)(5)(A)). Whether to grant a timely motion to extend the time
to file an appeal involves equitable considerations. Factors to
be weighed in determining whether to grant an extension based
upon excusable neglect or good cause shown include the length of
delay (here, a mere nine days), its potential impact on judicial
proceedings (here, probably negligible), the danger of prejudice
to the nonmoving party (here, virtually none), the reason for the
delay (here, cryptically referred to as prisoner movement within
the system and limited access to a law library, as well as
petitioner’s pro se status and his obvious unfamiliarity with
appropriate procedural processes), and, the reason for the delay
(if this appeal was indeed untimely), whether delay was within
the control of the movant, and whether the movant acted in good
faith (here, the reasons for delay are not fully explained, but
petitioner seems to have acted in good faith — he indicated a
desire to appeal early o n , signing his “notice” on March 1 7 , and
it was actually mailed, finding its way to the court of appeals.
4 If the “notice of appeal” is deemed untimely, a reasonable
extension nunc pro tunc to April 1 4 , 2008, in which to file a
notice of appeal might still be granted. But petitioner has not
developed either the grounds upon which he invokes excusable
neglect or good cause.
Accordingly, if petitioner did not deposit his petition in
the institution’s mail system for delivery to the court of
appeals on or before April 5 , 2008, he shall, again, on or before
July 2 5 , 2008, file a supplemental brief explaining in detail
what specific factors caused his failure to deposit the petition
(now treated as a notice of appeal) in the mail system on or
before the April 5 deadline.
Certificate of Appealability
Nonetheless, even if the “notice” was timely, or if not and
an extension of time is allowed, still, petitioner may not appeal
the final judgment entered by this court denying habeas relief
unless he first obtains a certificate of appealability, either
from this court or from the court of appeals, certifying that he
has “made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c); Fed. R. App. P.
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Gray v . NHSP Warden 07-CV-077-SM 06/25/08 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Vernon Gray, Petitioner
v. Civil N o . 07-cv-77-SM Opinion N o . 2008 DNH 122 Bruce Cattell, Warden, New Hampshire State Prison, Respondent
O R D E R
The court of appeals treated petitioner’s “Petition for Writ
of Habeas Corpus” filed in that court, and seeking “de novo
review” of this court’s earlier denial of that same petition, as
a notice of appeal. See Fed. R. App. P. 4(d) (a notice of appeal
mistakenly filed in the court of appeals is treated as having
been filed in the district court on the date it was received by
the appellate court). Accordingly, this court docketed the
“notice of appeal” as of April 1 4 , 2008.
Timeliness of Appeal
Judgment denying the original petition was entered in this
court on March 5 , 2008. S o , petitioner had until April 5 , 2008,
to file a timely notice of appeal. Fed. R. App. P. 4(a)(1)(A).
His “notice of appeal” facially appears to have been filed about
nine days too late. But, petitioner is a prisoner, and the “notice of appeal”
apparently was signed on March 1 7 , 2008, well before the thirty
day period expired. Under the “mail rule,” a notice of appeal
filed by an inmate confined in an institution is deemed to have
been timely filed when it is deposited in the institution’s
internal mail system on or before the last day for filing. Fed.
R. App. P. 4 ( C ) . Unfortunately, the record in this case is both
undeveloped and unclear with respect to that critical point —
petitioner is silent and respondent overlooks Fed. R. App. P.
4(d) in focusing his argument on the erroneous proposition that
the “mail rule” only applies if a notice of appeal is mailed to
the correct court. Houston v . Lack, 487 U.S. 266 (1988), cited
by respondent, does not suggest such a conclusion.
Actually, Houston fully recognizes that it is prison
authorities who are in the best position to resolve doubts about
timeliness under the mail rule:
Because reference to prison mail logs will generally be a straightforward inquiry, making filing turn on the date the pro se prisoner delivers notice to prison authorities for mailing is a bright-line rule, not an uncertain one. * * * The prison will be the only party with access to at least some of the evidence needed to resolve such questions — one of the vices the general rule is meant to avoid — and evidence on any of these issues will be hard to come by for the prisoner confined to his cell, who can usually only guess whether the prison authorities, the Postal Service, or the court clerk is to blame for any delay.
2 Id., at 275-276. Gray’s “notice of appeal” was given to prison
authorities to mail sometime after March 17 (when it was signed),
and before April 1 4 , 2008 (when it was received by the court of
appeals), and it seems eminently plausible that it was given to
prison authorities for mailing before April 5 , 2008. It is
hardly unusual for this court to receive pleadings mailed by
prisoners well after they are signed and beyond the time one
would expect due to normal postal delays. Respondent’s failure
to refer to or produce any mail logs showing when the “notice”
was received or mailed by prison authorities is perhaps telling
in that regard.
In any event, the critical facts related to timeliness need
to be developed, considered, and the timeliness issue decided.
See Morales-Rivera v . United States, 184 F.3d 109 (1st Cir.
1999); Allen v . Culliver, 471 F.3d 1196 (11th Cir. 2006).
Accordingly, on or before July 2 5 , 2008, petitioner shall file a
declaration in compliance with 28 U.S.C. § 1746, or a notarized
statement, setting forth the date he placed the petition (the one
sent to the court of appeals) in the institution’s system
designed for legal mail. See Fed. R. App. P. 4(c)(1).
And, on or before July 2 5 , 2008, respondent shall file a
supplemental pleading disclosing mail log or other business
3 record entries pertinent to petitioner’s filing of the “notice of
appeal.”
Extension of Time in Which to File Notice of Appeal
Respondent concedes that petitioner filed a timely
precautionary motion to extend the time in which to file a notice
of appeal, as suggested by the court of appeals. Fed. R. App. P.
4(a)(5)(A)). Whether to grant a timely motion to extend the time
to file an appeal involves equitable considerations. Factors to
be weighed in determining whether to grant an extension based
upon excusable neglect or good cause shown include the length of
delay (here, a mere nine days), its potential impact on judicial
proceedings (here, probably negligible), the danger of prejudice
to the nonmoving party (here, virtually none), the reason for the
delay (here, cryptically referred to as prisoner movement within
the system and limited access to a law library, as well as
petitioner’s pro se status and his obvious unfamiliarity with
appropriate procedural processes), and, the reason for the delay
(if this appeal was indeed untimely), whether delay was within
the control of the movant, and whether the movant acted in good
faith (here, the reasons for delay are not fully explained, but
petitioner seems to have acted in good faith — he indicated a
desire to appeal early o n , signing his “notice” on March 1 7 , and
it was actually mailed, finding its way to the court of appeals.
4 If the “notice of appeal” is deemed untimely, a reasonable
extension nunc pro tunc to April 1 4 , 2008, in which to file a
notice of appeal might still be granted. But petitioner has not
developed either the grounds upon which he invokes excusable
neglect or good cause.
Accordingly, if petitioner did not deposit his petition in
the institution’s mail system for delivery to the court of
appeals on or before April 5 , 2008, he shall, again, on or before
July 2 5 , 2008, file a supplemental brief explaining in detail
what specific factors caused his failure to deposit the petition
(now treated as a notice of appeal) in the mail system on or
before the April 5 deadline.
Certificate of Appealability
Nonetheless, even if the “notice” was timely, or if not and
an extension of time is allowed, still, petitioner may not appeal
the final judgment entered by this court denying habeas relief
unless he first obtains a certificate of appealability, either
from this court or from the court of appeals, certifying that he
has “made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). Petitioner
has not requested such a certificate nor asserted grounds upon
which the requisite finding might be made.
5 In cases involving a timely habeas appeal not accompanied by
a certificate of appealability from the district court, the court
of appeals usually directs the petitioner to seek such a
certificate from the district court within 30 days. That process
suits this case as well. Petitioner shall also file a motion or
application for a certificate of appealability on or before July
2 5 , 2008, fully setting forth any grounds he believes would
justify issuance of such a certificate.
SO ORDERED.
Steven J./McAuliffe ^hief Judge
June 2 5 , 2008
cc: Vernon Gray, pro se Susan P. McGinnis, Esq. Stephen Fuller, Office of NHAG John Vinson, NHDOC