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Nebraska Prisons Get Progressive Phone Contract

by Matthew T. Clarke

In February, 2003, The Nebraska Department of Corrections (DOC) has contracted with AT&T to set up what may be the most progressive prisoner phone service in the United States. The five-year contract makes AT&T the sole provider of local and long distance services, associated equipment, maintenance and administrative services to the approximately 3,700 prisoners in the Community Corrections Centers at Lincoln and Omaha, the Diagnostic and Evaluation Center at Lincoln, Hastings Corrections Center, Lincoln Correction Center, Nebraska Correction Center for Women, Nebraska Correctional Youth Facility at Omaha, Nebraska State Penitentiary, Omaha Correctional Center, Work Ethic Camp at McCook, and the Youth Rehab Treatment Centers at Geneva and Kearney.

AT&T operates more than 49,000 prisoner phone stations at over 3,000 U.S. prisons and jails. AT&T invented prisoner "collect calling only," 23 years ago. However, the contract calls for AT&T to offer the dialer a choice of calling collect or charging the call to a debit account. The ability of prisoners to call using a debit account has two favorable features: a 20% lower call rate and the ability to place international calls (which may not be done collect).

Prisoners are limited to 15 minutes of phone calls a day. The DOC is not accepting a commission. This allows for remarkably low rates. Local collect calls cost $1.00 regardless of length. Local debit calls cost 80¢, regardless of length. Each non-local call involves a service charge plus a call rate. The service charge for collect calls is 75¢; for debit calls it is 60¢. Thus, the charge on calls is as follows: 75¢ + 7¢/min (collect) or 60¢ + 5.6¢/min (debit) for a non-local call within the same area code; 75¢ + 10¢/min (collect) or 60¢ + 8¢/min (debit) for non-local calls outside the same area code, but within NE; 75¢ + 20¢/min (collect) or 60¢ + 16¢/min (debit) for out-of-state calls; and 50¢ per international unit (debit only). International calls to Canada, Mexico, Europe, and most South American, Central American, and Asian countries cost one international unit per minute. Very remote countries and those lacking modern digital telephone technology cost up to five international units a minute.

The prisoner phone system has digital switching with sophisticated security features. All calls are digitally recorded and the recordings backed up and archived for years. CDs can be made of the recordings for evidentiary purposes. The system detects call-forwarding and 3-way calling. Once detected, the call can be automatically disconnected or its recording automatically flagged for review. The system also automatically blocks prisoners from dialing additional digits once the call is placed.

AT&T provides the DOC with monitoring stations and the DOC has exclusive control over blocking some or all of the phone stations. The DOC will be able to block individual prisoners and individual telephone numbers. The system can alert monitors to calls of specific prisoners, allowing real time monitoring. Recipients of collect calls have the option of hearing the rates before accepting or even blocking all future calls from the prison. Attorney telephone numbers are identified from a database and supposedly will not be recorded or monitored. Each facility will be provided with a TDD unit for hearing-impaired prisoners.

AT&T says it will assist recipients of calls in managing their telephone bills. Released prisoners would receive a refund for the remainder of their debit account. Prisoners calling lists, which -may contain up to 20 numbers, may be updated every 90 days. The recipient of a call can accept it using a rotary-dial phone. Rates will be locked in for the entire 5-year run of the contract.

Source: AT&T Contract

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Related legal cases

Cook v. Stegall

Cook v. Stegall, 295 F.3d 517 (6th Cir. 07/01/2002)

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

[2] No. 00-2036

[3] 295 F.3d 517, 2002

[4] July 01, 2002


[6] Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 97-72450--Avern Cohn, Senior District Judge.

[7] Counsel

[8] Argued: James R. Gerometta, Federal Public Defenders Office, Detroit, Michigan, for Appellant.

[9] Raina I. Korbakis, State OF Michigan, Department OF Attorney General, Lansing, Michigan, for Appellee.

[10] ON Brief: James R. Gerometta, Andrew N. Wise, Federal Public Defenders Office, Detroit, Michigan, for Appellant.

[11] Laura Graves Moody, Office OF The Attorney General, Habeas Corpus Division, Lansing, Michigan, for Appellee.

[12] Before: Keith and Daughtrey, Circuit Judges; Marbley, District Judge.*fn1

[13] The opinion of the court was delivered by: Damon J. Keith, Circuit Judge.

[14] RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206

[15] ELECTRONIC CITATION: 2002 FED App. 0218P (6th Cir.)

[16] Argued: June 11, 2002

[17] Decided and Filed: July 1, 2002


[19] Petitioner Theodore Cook ("Cook") appeals the district court's dismissal with prejudice of his petition for a writ of habeas corpus because it was untimely. Cook presents three issues on appeal: whether he received adequate notice of his April 24, 1997 filing deadline when no controlling authority had set the deadline until after that date; whether the common law mailbox rule applies to the mailing of his habeas petition to a third party, who in turn filed the petition at a later date; and whether the statute of limitations should have been equitably tolled.

[20] For the reasons discussed below, we AFFIRM the dismissal of the petition.


[22] Cook was convicted of First Degree Murder in January 1982 in the Recorders Court for the City of Detroit, Michigan. His state court appeals were exhausted and his conviction finalized on June 3, 1985, when the Michigan Supreme Court denied Cook's application for leave to appeal.

[23] Cook did not file a petition for a writ of habeas corpus until 1997. Cook's initial petition was marked received by the Clerk's Office of the United States District Court for the Eastern District of Michigan on May 21, 1997. The petition was rejected and returned to Cook because it was neither accompanied by the five-dollar filing fee nor an application to proceed in forma pauperis. Cook's subsequent petition, accompanied by an application to proceed in forma pauperis, was marked received by the Clerk's Office on July 16, 1997. Additionally, the application to proceed in forma pauperis was dated and notarized April 19, 1997.

[24] On September 22, 1997, Respondent Jimmy Stegall ("Respondent") filed a motion to dismiss the petition, alleging that it was untimely. Respondent claimed that under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Cook was required to file his petition on or before April 24, 1997.

[25] Cook responded to the motion, making three claims. First, Cook claimed that the petition had been timely filed by his daughter, Elaine Cook, and the Clerk's stamp of May 21, 1997 was a mistake. Second, Cook claimed that the common law mailbox rule applied to make his petition timely, as he mailed the petition to his daughter on April 19 or 20, 1997 to photocopy and file. Cook alleged that he had not learned of the April 24 deadline until April 22, at which point he immediately called his daughter and instructed her to file the petition. Finally, Cook claimed that because the prison copier was broken, the limitations period should have been equitably tolled.

[26] Initially, the district court ruled that the mailbox rule should apply and found Cook's application timely. However, after granting a motion to reconsider filed by the Respondent, the district court reversed its ruling and denied the habeas petition because it was untimely.

[27] On appeal, Cook argues that the district court improperly ruled that neither the mailbox rule nor equitable tolling applied to make his application timely. Additionally, Cook argues that he lacked adequate notice of the applicability of the AEDPA statute of limitations to his conviction, since it became effective only after his conviction was finalized.


[29] A. Standard of Review

[30] The disposition of a habeas petition by the district court is reviewed de novo. The dismissal of a habeas petition by the district court as barred by 28 U.S.C. §2444's statute of limitations is reviewed de novo. Bronaugh v. Ohio, 235 F.3d 280, 282 (2000), reh'g and reh'g en banc denied, (2001). The factual findings of a district court are reviewed under a clearly erroneous standard. Lucas v. O'Dea, 179 F.3d 412, 416 (6th Cir. 1999).

[31] B. Filing Deadline

[32] On April 24, 1996, between the finalization of Cook's conviction and the filing of his habeas petition, the AEDPA became effective. The AEDPA amended 28 U.S.C. §2244 to include a new one-year period of limitations for habeas petitions brought by prisoners challenging state court judgments. See 28 U.S.C. §2244(d)(1)(A). For prisoners like Cook, whose convictions were finalized prior to enactment of the AEDPA, this Circuit has ruled that they have one additional year after the Act's effective date to file a habeas petition. See Brown v. O'Dea, 187 F.3d 572, 577 (6th Cir. 1999), overruled on other grounds 120 S.Ct. 2715 (2000). Therefore, Cook had until April 24, 1997 to file his habeas petition.

[33] C. Notice of Deadline

[34] Petitioner first argues that this deadline cannot be made applicable to him, since he lacked the adequate notice of the deadline that due process requires. While Cook filed his petition in 1997, the Sixth Circuit did not rule that prisoners whose convictions were finalized before the AEDPA became effective were subject to a one year limitations period until 1999. See id. Our precedents show that Cook was afforded a reasonable time to file his petition. Therefore, we affirm the district court's decision that applying the one-year limitations period to Cook does not violate due process.

[35] In applying legislatively amended periods of limitation, courts typically construe them as "govern[ing] the secondary conduct of filing suit, not the primary conduct of the [parties]." St. Louis v. Texas Worker's Compensation Commission, 65 F.3d 43, 46 (5th Cir.1995). Similarly, it is often said that statutes of limitation go to matters of remedy rather than to fundamental rights. See, e.g., Chase Securities Corp. v. Donaldson, 325 U.S. 304, 312-15, 65 S.Ct. 1137, 1142, 89 L.Ed. 1628 (1945) ("This Court, . . . adopted as a working hypothesis, as a matter of constitutional law, the view that statutes of limitation go to matters of remedy, not to destruction of fundamental rights."). As such, courts do not interpret the retroactive application of statute of limitations as requiring the notice that due process requires. "[S]tatutes relating to remedies or modes of procedure, which do not create new or take away vested rights, but only operate in furtherance of the remedy or confirmation of such rights, do not normally come within the legal conception of a retrospective law, or the general rule against the retrospective operation of statutes." United States v. Flores, 135 F.3d 1000, 1004 n.11 (5th Cir. 1998) (quoting 73 Am.Jur.2d Statutes § 354 (1974) (footnote omitted)).

[36] The application of a legislatively amended limitations period, however, is subject to at least one restriction. This constraint was expressed by the Supreme Court in Wilson v. Iseminger, 185 U.S. 55, 60-63, 22 S.Ct. 573, 575, 46 L.Ed. 804 (1902), where the Court stated:

[37] It may be properly conceded that all statutes of limitation must proceed on the idea that the party has full opportunity afforded him to try his right in the courts. A statute could not bar the existing rights of claimants without affording this opportunity; if it should attempt to do so, it would not be a statute of limitations, but an unlawful attempt to extinguish rights arbitrarily, whatever might be the purport of its provisions. Id.

[38] The Court went on to state that "[i]t is essential that such statutes allow a reasonable time after they take effect for the commencement of suits upon existing causes of action." Id. at 60-63, 22 S.Ct. at 575. As such, courts nearly unanimously allow prisoners a "reasonable time" after the enactment of the AEDPA to file a habeas petition, even if their conviction was finalized in the state courts more than one year prior to the filing of the petition. See e.g., United States v. Flores, 135 F.3d 1000 (5th Cir. 1998); Peterson v. Demskie, 107 F.3d 92, 93 (2d Cir.1997); Calderon v. United States District Court for the Central District of California, 128 F.3d 1283, 1287 (9th Cir.1997); United States v. Simmonds, 111 F.3d 737, 745-46 (10th Cir.1997); Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir.1996), rev'd on other grounds, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). This Circuit has already ruled that a one-year grace period after the AEDPA's effective date is reasonable. See Brown, 187 F.3d at 577. Therefore, applying this one-year deadline to Cook's habeas petition does not violate his due process rights.

[39] D. Common Law Mailbox Rule

[40] Next, Cook argues that the common law mailbox rule should apply in this case, thereby making his habeas petition timely; accordingly, April 19 or 20, the day that he mailed the habeas petition to his daughter, should be considered the actual filing date. We find the mailbox rule inapplicable to this case and affirm the district court on the issue.

[41] Under the mailbox rule, a habeas petition is deemed filed when the prisoner gives the petition to prison officials for filing in the federal courts. See Houston v. Lack, 487 U.S. 266, 273 (1988). The rationale for the rule is that the date the prisoner gives the petition to the prison can be readily ascertained, and any delays in receipt by the court can be attributed to the prison, and pro se litigants should not be penalized for a prison's failure to act promptly on their behalf. Id. at 275-276.

[42] Courts have been reluctant to extend the mailbox rule to the situation where a prisoner mails the petition to a third party for filing. See e.g., United States v. Cicero, 214 F.3d 199, 205 (D.C. Cir. 2000) (Petitioner "entrusted Mr. Al'Askari with his legal documents at his peril"); Paige v. United States, 171 F.3d 559 (8th Cir. 1999) (mailbox rule does not apply where prisoner mailed petition to his brother, a prisoner at another facility, for filing); Gaines v. Newland, 1998 WL 704418 (N.D. Cal. 1998) (mailbox rule does not apply where prisoner mailed petition to his grandmother for filing); Pearson v. Vaugh, 984 F.Supp. 315 (E.D. Pa. 1997) (mailbox rule does not apply where prisoner mailed petition to his attorney for filing). The reluctance of courts to apply the mailbox rule to mailings to third parties is well taken. A contrary rule would allow prisoners to mail habeas petitions to third parties for substantive revisions while claiming their earlier mailing date as the filing date. In this manner, prisoners could easily circumvent statutes of limitations. Therefore, we hold that the common law mailbox rule is inapplicable to the mailing of habeas petitions to third parties, as intermediaries, who then mail them to the court for filing.

[43] E. Equitable Tolling

[44] Finally, Cook argues that the statute of limitations should have been tolled because the prison copier was broken. We find equitable tolling inappropriate in this case, where Cook waited nearly twelve years to file a habeas petition.

[45] The following factors are weighed in deciding whether a statute of limitations should be tolled due to equitable considerations: (1) the petitioner's lack of notice of the filing requirement; (2) the petitioner's lack of constructive knowledge of the filing requirement; (3) diligence in pursuing one's rights; (4) absence of prejudice to the respondent; and (5) the petitioner's reasonableness in remaining ignorant of the legal requirement for filing the claim. Dunlap v. United States, 250 F.3d 1000 (6th Cir. 2001). This Circuit has repeatedly cautioned that equitable tolling relief should only be granted sparingly. See e.g., Dunlap, 250 F.3d at 1008-09. As stated in Graham-Humphreys, the five factors considered in deciding whether to equitably toll a limitations period are not comprehensive, nor is each of the five factors relevant in all cases. Graham-Humphreys, 209 F.3d at 561. The decision whether to equitably toll a period of limitations must be decided on a case-by-case basis. Truitt v. County of Wayne, 148 F.3d 644, 648 (6th Cir. 1998).

[46] Cook argues that because the prison copier was broken, he had to mail his habeas petition to his daughter for duplication; otherwise, he would not have been in compliance with the filing requirements. In the Eastern District of Michigan, habeas petitions "shall be filed with the Clerk in duplicate. The duplicate copies are to be clearly marked 'Judge's Copy.'" E.D. Mich. R. 5.1(b).

[47] Assessing the five factors outlined in Dunlap, no evidence suggests that Cook had actual notice or constructive knowledge of the filing requirement until a few days prior to the deadline. However, even according to Cook, he did know about the deadline before it expired. Additionally, it is hard to imagine how the Respondent would be prejudiced by a petition roughly one month late.

[48] Assuming the prison copier was broken, Cook certainly may have acted reasonably when he mailed the petition to his daughter for photocopying; the local rule would suggest that to be a sensible course of action. However, Cook would have never have been in this hurried state had he not waited nearly twelve years to file his habeas petition. This extended period during which he sat on his claims demonstrates that Cook was not diligent in pursuing his rights.

[49] Given this extraordinarily long period of unexplained idleness and the fact that Cook did have knowledge of the filing deadline at least a few days prior to the deadline, we find it inappropriate to exercise our equitable powers and toll the statute of limitations in this case.


[51] We AFFIRM the judgment of the Honorable Avern Cohn.


Opinion Footnotes


[52] *fn1 The Honorable Algenon L. Marbley, United States District Judge for the Southern District of Ohio, sitting by designation.

Huizar v. Carey

Huizar v. Carey, 273 F.3d 1220 (9th Cir. 12/14/2001)

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

[2] No. 00-56285

[3] 273 F.3d 1220, 2001, 1 Cal. Daily Op. Serv. 10,391, 2001 Daily Journal D.A.R. 12,959

[4] December 14, 2001


[6] D.C. No. CV-00-00540-JSL(CW) Appeal from the United States District Court for the Central District of California J. Spencer Letts, District Judge, Presiding

[7] Counsel Robison D. Harley, Jr., Santa Ana, California, argued the cause for the appellant. Susan Sullivan Pithey, Deputy Attorney General, Los Angeles, California, argued the cause for the appellee.

[8] Before: Myron H. Bright,*fn1 Alex Kozinski and William A. Fletcher, Circuit Judges.

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


[11] Argued and Submitted November 9, 2001--Pasadena, California

[12] Opinion by Judge Kozinski


[14] Under the "prison mailbox rule" of Houston v. Lack, 487 U.S. 266 (1988), a prisoner's federal habeas petition is deemed filed when he hands it over to prison authorities for mailing to the district court. We consider how the rule applies if the petition is never received or filed by the court.

[15] Huizar is a California state prisoner convicted of first degree murder. On April 15, 1996, he gave prison officials a state court habeas petition for mailing to the Superior Court; the prison's log of inmates' outgoing mail confirms this. On June 19 of that same year, Huizar claims he wrote to the court asking about the petition, but he got no reply. Twenty-one months later, in March 1998, Huizar says he had his sister send a second copy of the petition by certified mail, but again heard nothing back. Huizar wrote another letter to the court on August 3, 1998, relating his attempts to file a petition and asking the court to look into the matter. The court finally responded in a letter dated September 3, 1998, explaining that Huizar's petition had not been received. The petition was finally filed in the Superior Court on December 30, 1998, and denied on January 19, 1999. Huizar's subsequent petitions to the California Court of Appeal and California Supreme Court were also denied.

[16] On January 14, 2000, Huizar filed a federal habeas petition, which the district court dismissed as time-barred. We granted a certificate of appealability ("COA") as to a single issue: whether AEDPA's statute of limitations was equitably tolled from the time Huizar first tried to file a state habeas petition on April 15, 1996. At oral argument, counsel requested that we expand the COA to include the question of whether Huizar's federal petition is timely under Houston v. Lack. We grant the request. See 28 U.S.C. § 2253(c)(1), (2); Hiivala v. Wood, 195 F.3d 1098, 1102-04 (9th Cir. 1999) (per curiam).

[17] Under AEDPA, prisoners have one year to file federal habeas petitions. 28 U.S.C. § 2244(d)(1). Because Huizar's conviction became final before AEDPA was enacted, his year started to run on AEDPA's effective date (April 24, 1996). Unless the period was tolled, he had until April 24, 1997, to file his federal petition. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Huizar filed his federal petition almost three years after that date.

[18] Huizar argues that the period from the date he gave his first state petition to prison officials (April 15, 1996) to the date that petition was denied (January 19, 1999) does not count toward AEDPA's one-year period. See 28 U.S.C. § 2244(d)(2). Under this reckoning, Huizar filed his federal petition with the district court well before his year was up.*fn2

[19] Houston held that a prisoner's notice of appeal is deemed "filed at the time [he] deliver[s ] it to the prison authorities for forwarding to the court clerk." 487 U.S. at 276. See also Koch v. Ricketts, 68 F.3d 1191, 1192 (9th Cir. 1995). While Houston involved a prisoner's attempt to file a notice of appeal in federal district court, we held in Saffold v. Newland, 250 F.3d 1262, 1268 (9th Cir.), cert. granted, 122 S. Ct. 393 (2001), that the same rule applies to prisoners filing habeas petitions in both federal and state courts. *fn3

[20] We must thus decide whether the Houston rule applies even where a prisoner's petition is never filed by the court. We hold that Houston's rationale applies with equal force in such a case. In developing the prison mailbox rule, Houston noted that prisoners "cannot take the steps other litigants can take to monitor the processing of their [documents] and to ensure that the court clerk receives and stamps[them] before" the applicable deadlines. 487 U.S. at 270-71. Moreover, prison officials may have an incentive to delay prisoners' court filings, and prisoners will have a hard time proving that the officials did so. Id. at 271. A prisoner's control over the filing of his petition ceases when he delivers it to prison officials. Id. at 270-71. Whether or not the petition is actually placed in the mail, delivered to the court or filed once it arrives there, are all matters beyond the prisoner's control. A prisoner who delivers a document to prison authorities gets the benefit of the prison mailbox rule, so long as he diligently follows up once he has failed to receive a disposition from the court after a reasonable period of time.*fn4

[21] [3] Huizar was reasonably diligent. Having received no response from the court two months after he sent in his petition, he wrote to the court----but heard nothing back. A private party, especially a prisoner, will be at a loss for what to do, other than wait, if a court fails to respond to such an inquiry. So Huizar waited an additional twenty-one months, not an unusually long time to wait for a court's decision. He then sent another copy of his petition to the court, taking extra steps to make sure it arrived by asking his sister to send it via certified mail. He still received no reply after another five months of waiting, so he sent another letter. Only after this second letter--Huizar's fourth mailing to the court--did the court respond. Huizar's steady stream of correspondence, if proven, would show reasonable diligence on his part.

[22] Our ruling depends, of course, on accepting the facts as alleged by Huizar. Although the prison's log of outgoing mail provides strong evidence of the date Huizar handed over his petition, the state hasn't had the chance to contest this point. Therefore, we remand to the district court "to determine when the prisoner delivered the [petition] to prison authorities." Sudduth v. Ariz. Atty. Gen., 921 F.2d 206, 207 (9th Cir. 1990) (citing Miller v. Sumner, 872 F.2d 287 (9th Cir. 1989)). The district court must also decide if and when Huizar followed up on his petition: Did Huizar send two letters to the court, as he alleges? Did his sister mail a second copy of his petition via certified mail? If the district court finds that the facts are as Huizar claims them to be, it shall deem his petition timely and consider it on the merits.



Opinion Footnotes


[24] *fn1 The Honorable Myron H. Bright, Senior United States Circuit Judge for the Eighth Circuit, sitting by designation.

[25] *fn2 Huizar also filed habeas petitions in the California appellate courts. In Saffold v. Newland, 250 F.3d 1262, 1268 (9th Cir.), cert. granted, 122 S. Ct. 393 (2001), we held that AEDPA's statute of limitations is tolled for the entire time a prisoner is pursuing state court remedies. Therefore, the gaps between the denial of one state petition and the filing of the next are not counted against the prisoner's year. 250 F.3d at 1267-68. Because Huizar meets AEDPA's deadline even if we count the time between the petitions against him, our ruling does not turn on this portion of the Saffold opinion.

[26] *fn3 Because this holding of Saffold was not included in the question presented in the cert petition, it's unlikely to be reviewed by the Supreme Court.

[27] *fn4 Our interpretation of Houston is consistent with other applications of the mailbox rule. In contract law, once an offer is made, acceptance is effective when put in the mail, and the offer can't thereafter be revoked. Restatement (Second) of Contracts § 63 (1979); 1 E. Allan Farnsworth, Farnsworth on Contracts § 3.22, at 315 (2d ed. 1998) (citing Adams v. Lindsell, 106 Eng. Rep. 250 (K.B. 1818)). This rule applies even if the mailed acceptance never arrives. See Worms v. Burgess, 620 P.2d 455, 458-59 (Okla. Ct. App. 1980) (an option was properly exercised when the acceptance was mailed, even though it was never received); Palo Alto Town and Country Village, Inc. v. BBTC Co. , 521 P.2d 1097, 1100-01 (Cal. 1974) (in bank) (same); Farnsworth, supra , § 3.22 at 319-20. Similarly, insurance premiums are deemed paid when mailed. Barry v. Videojet Sys. Int'l, Inc., No. 93 C 6095, 1995 WL 548592, *3-*4 (N.D. Ill. Sept. 12, 1995). This is true even when "the mailed premium does not reach the destination at all." 5 Lee R. Russ & Thomas F. Segalla, Couch on Insurance 3d § 73.62 at 73-95 (1997); see Barry, 1995 WL 548592 at *3-*4 (plaintiff made timely premium payment by mailing it, even though the insurer never got it). Under the mailbox rule codified at 26 U.S.C. § 7502, tax returns or Tax Court petitions are deemed filed on the postmark date. 26 U.S.C. § 7502(a). If the Service claims it never received the document, a taxpayer can prove timely mailing by pointing to the postmark date on the certified or registered mail receipt he got when he mailed the document. 26 U.S.C. § 7502(c)(1) & (2); Anderson v. United States, 966 F.2d 487, 490 (9th Cir. 1992); Carroll v. Comm'r, 71 F.3d 1228, 1230-31 (6th Cir. 1995); Internal Revenue Serv., Dep't of the Treasury, Your Federal Income Tax (Publication 17) 11 (2001). The "common law mailbox rule," although similarly named, works somewhat differently: It provides that mailing something raises only a rebuttable presumption that the addressee got it. Schikore v. BankAmerica Supplemental Ret. Plan, 269 F.3d 956, 961 (9th Cir. 2001). If the sender shows enough evidence to raise the presumption, then the other party bears the burden of showing that the document never arrived. Id. at 963. Merely stating that the document isn't in the addressee's files or records--which is all that the state has done in this case--is insufficient to defeat the presumption of receipt. See id. at 963-64 (applying the common law mailbox rule where a retirement plan claimed it never got an employee's form for ERISA benefits).

Knickerbocker v. Artuz

GEORGE KNICKERBOCKER, Petitioner-Appellant, --v.-- CHRISTOPHER ARTUZ, Superintendent, Green Haven Correctional Facility, and THE ATTORNEY GENERAL OF THE STATE OF NEW YORK, Respondents-Appellees.

Docket No. 01-2140


271 F.3d 35; 2001 U.S. App.

June 20, 2001, Submitted
November 5, 2001, Decided

State prisoner appeals from a judgment of the United States District Court for the Southern District of New York (McMahon, J.), dismissing his petition for a writ of habeas corpus. We sua sponte dismiss the appeal and deny as moot petitioner's motions for in forma pauperis status and a certificate of appealability, because petitioner's notice of appeal was not timely filed. We hold that the prison mailbox rule, set forth in Houston v. Lack, 487 U.S. 266, 276 (1988), does not apply where a pro se prisoner delivers his notice of appeal to someone outside the prison system for forwarding to the court clerk. The action is remanded to the district court to determine whether, pursuant to Fed. R. App. P. 4(a)(5)(A), Knickerbocker should be granted an extension of time for filing his notice of appeal. Appeal dismissed sua sponte, motions denied as moot, and action remanded to district court.

People v. Knickerbocker, 230 A.D.2d 753, 646 N.Y.S.2d 171, 1996 N.Y. App. Div. LEXIS 8194 (2d Dep't 1996)

COUNSEL: George Knickerbocker, Stormville, N.Y., Pro se.

John J. Sergi, Westchester County District Attorney's Office, White Plains, N.Y., for Respondent-Appellee Christopher Artuz.

JUDGES: Before: JACOBS, PARKER, and SOTOMAYOR, Circuit Judges.

OPINION: [*36]

Petitioner-appellant [**2] George Knickerbocker, an incarcerated state prisoner, moves pro se for in forma pauperis status and a certificate of appealability following the dismissal of his petition for a writ of habeas corpus by the United States District Court for the Southern District of New York (McMahon, J.). The district court entered judgment on January 17, 2001. Pursuant to Fed. R. App. P. 4(a)(1)(A), Knickerbocker was required to file his notice of appeal within thirty days of the entry of judgment, which in this case fell on February 16, 2001. Instead, the district court received Knickerbocker's [*37] notice of appeal on February 21, 2001. n1 Knickerbocker had signed and dated the notice of appeal February 12, 2001, twenty-six days after the entry of judgment, and had verified that he was incarcerated in Stormville, New York. Attached to Knickerbocker's notice of appeal was an affirmation of service by his sister, Theresa Knickerbocker, stating that she mailed the notice of appeal to this Court on February 14, 2001.

n1 The notice of appeal was actually received by this Court on February 21, 2001, and was then transferred to the district court. See Fed. R. App. P. 4(d) ("If a notice of appeal in either a civil or a criminal case is mistakenly filed in the court of appeals, the clerk of that court must note on the notice the date when it was received and send it to the district clerk. The notice is then considered filed in the district court on the date so noted.").

In Houston v. Lack, the Supreme Court held that a pro se prisoner's notice of appeal is deemed filed on the date that the prisoner "delivers it to the prison authorities for forwarding to the court clerk," rather than when it is received by the court clerk. 487 U.S. 266, 276, 108 S. Ct. 2379, 101 L. Ed. 2d 245 (1988); see also Fed. R. App. P. 4(c) (allowing a notice of appeal filed by an incarcerated individual to be deemed filed as of the day it is given to prison officials for mailing). The Court explained that pro se prisoners cannot take the precautions that are available to other litigants to ensure that their documents are timely filed. "Worse," the Court continued, "the pro se prisoner has no choice but to entrust the forwarding of his notice of appeal to prison authorities whom he cannot control or supervise and who may have every incentive to delay." Houston, 487 U.S. at 271.
Although Knickerbocker timely dated the notice of appeal, he did not deliver the document to prison officials to forward to the court clerk. Instead, he delivered the notice of appeal to his sister to mail to the court. Knickerbocker is not entitled to the benefit of the prison mailbox [**4] rule because, unlike the situation addressed in Houston, the delay in this case is not attributable to prison officials. Knickerbocker chose not to "entrust the forwarding of his notice of appeal to prison authorities," but rather gave it to his sister who, unlike prison officials, had no potential "incentive to delay." We join the other circuits that have addressed this issue by holding that the prison mailbox rule established in Houston does not apply where a pro se prisoner delivers his notice of appeal to someone outside the prison system for forwarding to the court clerk .See Dison v. Whitley, 20 F.3d 185, 187 (5th Cir. 1994); Wilder v. Chairman of the Cent. Classification Bd., 926 F.2d 367, 370 (4th Cir. 1991). This rule applies both where a pro se prisoner gives a notice of appeal to an outside agent directly and where he delivers the notice of appeal to prison authorities to forward to an outside agent. Houston, 487 U.S. at 273 ("Delivery of a notice of appeal to prison authorities would not under any theory constitute a 'filing' unless the notice were delivered for forwarding to the district court.").
We recognize, [**5] however, that Knickerbocker diligently tried to file his notice of appeal in a timely fashion, and that the parameters of the prison mailbox rule were unclear until today's ruling. We therefore remand the action to the district court to determine whether Knickerbocker's and his sister's affidavits can reasonably be construed as a motion for an extension of time to file his notice of appeal pursuant to Fed. R. App. P. 4(a)(5)(A). n2 As [*38] to whether it is reasonable or appropriate to do so, we express no view.

n2 Rule 4(a)(5)(A) provides: "The district court may extend the time to file a notice of appeal if (i) a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires; and (ii) that party shows excusable neglect or good cause."