Opinion
No. 3:03-CV-1333-D, Consolidated with 3:03cv1334-D), Fifth Circuit No. 04-10730).
October 26, 2004
FINDING OF FACT AND ORDER
Pursuant to the provisions of 28 U.S.C. § 636(b) and an order of the District Court filed on August 16, 2004, this action has been referred to the undersigned magistrate judge for further proceedings.
On August 3, 2004, the Fifth Circuit remanded this case to the District Court to determine whether Petitioner delivered his notice of appeal to prison officials for mailing on or before June 9, 2004.
On October 8, 2004, in his first advisory to the court, Respondent submitted a copy of the Neal Unit's prison mail log for the period from June 1, 2004, through June 15, 2004. The mail log reflects that on June 7 and June 8, 2004, Petitioner delivered to the Neal Unit mailroom legal mail addressed to this Court. In his second advisory to the court, filed on October 22, 2004, Respondent submitted an affidavit from Tommy R. Roberts, law library supervisor at the Neal Unit, verifying that on Saturday June 5, 2004, he certified Petitioner's six-month inmate trust fund statement, and that he mailed the same on June 7, 2004. Owens's six-month statement was mailed to the court in the same envelope that contained his pro se notice of appeal. Accordingly, the court finds that Petitioner's notice of appeal was deposited in the prison's internal mail system on or before June 9, 2004, and
IT IS THEREFORE ORDERED that this case shall be returned to the Fifth Circuit for further proceedings.
IT IS FURTHER ORDERED that Petitioner's motion to compel, filed on October 6, 2004, be denied as moot.