Opinion
No. 3-04-CV-0898-R.
March 14, 2005
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This pro se habeas case has been recommitted to the United States magistrate judge for a recommendation as to when petitioner delivered his notice of appeal to prison authorities for mailing. The findings and recommendation of the magistrate judge are as follow:
I.
Petitioner Willie Lindley, Jr. filed an application for writ of habeas corpus challenging his conviction and five-year sentence for indecency with a child. By judgment entered on September 9, 2004, the application was denied. Lindley v. Dretke, 2004 WL 1877796 (N.D. Tex. Aug. 20, 2004), rec. adopted, 2004 WL 2008522 (N.D. Tex. Sept. 9, 2004). Petitioner did not file a notice of appeal until October 15, 2004. Unable to determine when petitioner deposited his notice of appeal in the prison mail system or whether the notice was timely under Fed.R.App.P. 4(a)(1) (c)(1), the Fifth Circuit remanded the case to this court for such a determination. Lindley v. Dretke, No. 04-11284 (5th Cir. Jan. 28, 2005).
Rule 4(a)(1) provides, in pertinent part:
In a civil case . . . the notice of appeal required by Rule 3 must be filed with the district clerk within 30 days after the judgment or order appealed from is entered.
FED. R. APP. P. 4(a)(1). A notice of appeal filed by a prisoner is timely if "deposited in the institution's internal mail system on or before the last day for filing." FED. R. APP. P. 4(c)(1).
II.
The court sent written interrogatories to petitioner to determine when he placed his notice of appeal in the prison mail system. In response to the interrogatories, petitioner states under penalty of perjury that he delivered his notice of appeal to the prison law librarian on October 12, 2004. (Interrogatory #1). An I-60 form, attached to the interrogatory answers, confirms that the librarian processed the notice of appeal on that date. As a result, petitioner's notice of appeal is timely. See FED. R. APP. P. 4(c)(1).
RECOMMENDATION
The court finds that petitioner deposited his notice of appeal in the prison mail system on October 12, 2004. This case should be returned to the court of appeals for further proceedings.