Opinion
Criminal No. 4:99-CR-175-P, Civil No. 4:02-CV-008-P
December 30, 2002
Under 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas, and a November 5, 2002 Order from the United States Court of Appeals for the Fifth Circuit, Petitioner Brenson Stovall's Application to Proceed In Forma Pauperis and the issue of the timeliness of his notice of appeal were referred to the United States Magistrate Judge.
On June 20, 2002, the United States District Court denied Stovall's motion to vacate under 28 U.S.C. § 2255. (1 R. on Appeal at 77.) On August 27, Stovall's notice of appeal and motion for certificate of appealability were filed. ( Id. at 78.) On September 16, this court recommended that Stovalls motion for certificate of appealability be denied and that Stovall be granted leave to proceed in forma pauperis on appeal. ( Id. at 83.) Three days later, the District Court denied Stovall's motion for certificate of appealability and granted him leave to proceed in forma pauperis on appeal. ( Id. at 86.) On November 5, the Fifth Circuit Court of Appeals remanded the case to the District Court for a determination of whether Stovall timely delivered the notice of appeal to prison officials. See Fed.R.App.P. 4(a)(1)(B). On November 8, Stovall filed an application to proceed in forma pauperis on appeal with a certificate of his inmate trust account. (Docket #133.) On November 15, the District Court remanded to this court the issue of whether Stovall timely filed his notice of appeal and his Application to Proceed In Forma Pauperis. In response to an order from this court, Stovall filed a declaration stating that he had delivered his notice of appeal to prison officials on August 16, 2002. The United States did not respond to the declaration.
Regarding Stovall's Application to Proceed In Forma Pauperis, this court was in error to recommend granting Stovall in forma pauperis status on appeal before Stovall had filed an application requesting such status. But based on Stovall's inmate trust account, which was attached to his application, this court recommends that Stovall's November 8, 2002 Application to Proceed In Formas Pauperis be granted.
Because the District Court denied Stovall's motion to vacate on June 20, 2002, his notice of appeal was due on or before August 19. Id. Stovall's notice of appeal, in which he solely challenged his sentencing on counts 5, 8, and 11, was dated August 16, 2002 and he asserts that he gave it to prison officials on that date after the prisons postage meter represented that the postage was adequate. ( Id. at 80; Pet'r Decl. at 3.) On August 20, Stovall's notice of appeal was returned to him for insufficient postage. (Pet'r Decl. at 4.) Stovall again gave his notice of appeal to prison officials on August 22. ( Id.) The clerk filed Stovall's notice of appeal on August 27 — eight days after it was due. (R. on Appeal at 78.)
A prisoner's notice of appeal is deemed timely filed if it is delivered to prison officials on or before the jurisdictional appellate deadline. Houston v. Lack, 487 U.S. 266, 270-72, 276 (1988); see also FED. R. APP. P. 4(c)(1). However, a prisoner must do all that he or she can reasonably do to ensure that documents are received by the clerk in a timely manner. Thompson v. Raspberry, 993 F.2d 513, 515 (5th Cir. 1993). "Failure to stamp or properly address outgoing mail or to follow reasonable prison regulations governing prisoner mail does not constitute compliance with this standard." Id.; see also Dison v. Whitley, 20 F.3d 185, 187 (5th Cir. 1994) (holding because proper postage was not put on notice of appeal before delivered to prison authorities, it was not timely filed). Although Stovall did not place sufficient postage on his notice of appeal, he attempted to properly mail it and, through no fault of his own, believed that the postage was sufficient. The United States does not dispute that Stovall's insufficient postage was anything but an inadvertent mistake based on prison postal equipment. Thus, Stovall did all he could reasonably do to ensure the notice of appeal was timely filed. This court recommends that Stovall's notice of appeal be deemed timely filed.