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King v. McFadden

United States District Court, D. South Carolina, Aiken Division

May 31, 2019

Andre King, Petitioner,
v.
Warden McFadden, Respondent.

          ORDER AND OPINION

         Before the court for review is Petitioner Andre King's “Motion to Reopen the Petitioner['s] Time to File an Appeal” (ECF No. 51). Petitioner requests that the court reopen the time to file an appeal of this court's Order accepting the Magistrate Judge's Report and Recommendation (“Report”). (ECF No. 51 at 1.) The court DENIES Petitioner's Motion.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On August 26, 2015, the court accepted the Magistrate Judge's Report and granted Respondent Warden McFadden's (“Respondent”) Motion for Summary Judgment (ECF No. 19), denied Petitioner's Motion to Hold in Abeyance (ECF No. 23), and denied Petitioner's 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus (ECF No. 1). (ECF No. 48 at 9.) On that same day, the court mailed its Order accepting the Magistrate Judge's Report to Petitioner. (ECF No. 50.) On May 24, 2019, Petitioner filed the instant “Motion to Reopen the Petitioner['s] Time to File an Appeal.” (ECF No. 51.) Petitioner asserts that on September 21, 2015-within thirty (30) days of this court's August 26, 2015 Order accepting the Magistrate Judge's December 9, 2014 Report-he “deposited [a] notice of appeal of [the court's August 26, 2015 Order] in the prison mailing system to the District Court of South Carolina.” (ECF No. 51 at 2.) In support of his Motion, Petitioner provided the court with an affidavit in which he asserts that he received the court's August 26, 2015 Order on September 9, 2015, and “on September 21, 2015[, ] . . . handed [his] legal mail to the [L]ieber Correctional Institution Mail Room officials to be mailed to th[e] [c]ourt.” (ECF No. 51-1 at 2.) Petitioner also states that “on November 17, 2016[, ] [he] . . . sent th[e] [c]ourt a letter regarding [his] notice of appeal, ” but did not receive a response. (Id. at 2.) Petitioner provided the court with a copy of this November 17, 2016 letter, in which Petitioner “inquire[s] about the status of [his] appeal, ” asserts that he “deposited a Notice of Appeal in the institutional mailbox, ” “never received a response from the District Court or the Fourth Circuit Court of Appeals, ” and “made two (2) inquiries to the Office of the Clerk of Court in the interim with no response to either query, ” and “formally request[s] that the District Court reopen the time in which to file the Notice of Appeal.” (ECF No. 51-2 at 1.) Petitioner further states in the letter that he attached a copy of the Notice of Appeal that he deposited in the Lieber Correctional Institution mailbox, but he did not submit a copy of that Notice of Appeal with the copy of the November 17, 2016 letter he filed with the instant Motion. (See id.)

         II. DISCUSSION

         Although Petitioner titled his Motion as “Motion to Reopen [] Petitioner['s] Time to File an Appeal, ” and he requests that the court “reopen the . . . time to file an appeal to this court regarding his writ of habeas corpus, ” the court liberally construes Petitioner's Motion as a motion to accept his notice of appeal as timely. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro se is to be liberally construed, ” and “a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976))). Reopening the time to file an appeal is governed by Federal Rule of Appellate Procedure 4(a)(6), [1] which does not appear anywhere in Petitioner's Motion. (See ECF No. 51.) Instead, Petitioner cites Federal Rule of Appellate Procedure 4(c)(1) and Houston v. Lack, 487 U.S. 266 (1988), arguing his Notice of Appeal was filed when he “handed [it] to prison officials to be mailed to this [c]ourt.” (Id. at 3.) Federal Rule of Appellate Procedure 4(c) provides that

         (1) If an institution has a system designed for legal mail, an inmate confined there must use that system to receive the benefit of this Rule 4(c)(1). If an inmate files a notice of appeal in either a civil or a criminal case, the notice is timely if it is deposited in the institution's internal mail system on or before the last day for filing and:

         (A) it is accompanied by:

(i) a declaration in compliance with 28 U.S.C. § 1746--or a notarized statement--setting out the date of deposit and stating that first-class postage is being prepaid; or
(ii) evidence (such as a postmark or date stamp) showing that the notice was so deposited and that postage was prepaid; or
(B) the court of appeals exercises its discretion to permit the later filing of a declaration or notarized statement that satisfies Rule 4(c)(1)(A)(i)

         Fed. R. App. P. 4(c)(1)(A)-(B). And under Houston v. Lack, a pro se inmate is entitled to the benefit of the “prison mailbox rule, ” under which the court regards a pro se inmate's petition or motion as having been filed upon delivery to prison authorities for mailing to the court. 487 U.S. 266, 276 (1988). See also United States v. McNeill, 523 Fed. App'x 979, 981 (4th Cir. 2013) (“A pro se litigant's legal papers are considered filed upon ‘delivery to prison authorities, not receipt by the clerk.'” (quoting Houston, 487 U.S. at 275)). Therefore, the court construes Defendant's Motion as requesting that the court find Defendant filed a Notice of Appeal on September 21, 2015, when he claimed he “deposited [it] in the prison mailing system, ” and allow him to proceed with an appeal of the court's August 26, 2015 Order denying his Habeas Corpus Petition. (Id. at 2, 3.) See Erickson, 551 U.S. at 94.

         The trouble here is that the court never received a Notice of Appeal from Petitioner, or any of the letters he claims to have sent inquiring about the status of his appeal. (See ECF Nos. 51, 51-1, 51-2.) In United States v. McNeill, confronted with a similar situation, the United States Court of Appeals for the Fourth Circuit, in an unpublished opinion, determined that “where a prisoner claims to have submitted a legal document to prison mail authorities, but no document arrives or is filed at the district court, ” the district court must make factual findings “as to whether the legal documents in question were actually delivered to the prison mail system on time.” 523 Fed.Appx. at 982. The appellant in McNeill was mistakenly told by another inmate to file his 28 U.S.C. § 2255 petition with the district court in the district where the petitioner was incarcerated instead of with the the district court in the district where the petitioner was sentenced. Id. at 980. Appellant McNeill claimed “he filled out a standard . . . form to set out his claims for relief, and then hand delivered his petition with first-class postage to prison mailroom staff.” Id. Later, McNeill conferred with another inmate, who told McNeill that he sent his petition to the wrong court. Id. Appellant McNeill wrote a letter to the district court where he had sent his petition, requesting confirmation that it had been filed, but received no response. Id. Appellant McNeill then sent a second letter to the court, to which he received a response informing him that his petition would be returned to him because it had been filed in the wrong court. Id. Appellant McNeill then filed a motion in the proper district court, the Eastern District of North Carolina, requesting that the court “accept his petition as timely filed along with a ‘Sworn and Incorporated Memorandum of Law as Timely Filed' pursuant to 28 U.S.C. § 1746.” Id. at 981. The court denied McNeill's motion, and denied his motion for reconsideration, finding “the prison mailbox rule did not apply because the envelope in question was not correctly addressed to the proper recipient.” Id.

         The Fourth Circuit began its analysis by recognizing that “McNeill's case presents a matter of first impression for the Fourth Circuit, but the disposition and reasoning of other circuits in similar cases is informative.” Id. at 981. Specifically, the court considered the United States Court of Appeals for the Ninth Circuit's decision in Huizar v. Carey, 273 F.3d 1220 (9th Cir. 2001), and the United States Court of Appeals for the Eleventh Circuit's decision in Allen v. Culliver, 471 F.3d 1196 (11th Cir. 2006) (per curiam). Id. at 981-82. The Fourth Circuit held that when “a prisoner claims to have submitted a legal document to prison mail authorities, but no document arrives or is filed at the district court, ” the district court must make “clear factual findings” that the prisoner did or did not submit the legal documents at issue. See Id. at 982. Because the district court in McNeill did not make clear factual findings, the Fourth Circuit remanded the case to the district court with the following instructions:

On remand, the district court must answer two narrow questions. First, the court must determine whether McNeill sent his petition on time. The petitioner's diligence after a timely submission of his petition is irrelevant. There is nothing in § 2255, nor any corresponding rule, requiring that a pro se litigant diligently monitor his petition after it has been submitted. Nor did the Supreme Court require diligence in Houston. The district court here should not consider petitioner's diligence in making its factual determinations. ...

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