Opinion
CRIMINAL ACTION NO. 01-08, SECTION "N" (3).
April 16, 2009
ORDER
The Court, having considered the complaint, the record, the applicable law, the Report and Recommendation of the United States Magistrate Judge, the memorandum filed by the defendant on March 23, 2009 (Rec. Doc. No. 185), and the failure of any party to file an objection to the Magistrate Judge's Report and Recommendation, hereby approves the Report and Recommendation of the United States Magistrate Judge and adopts it as its opinion in this matter.
Therefore, it is the opinion of this Court that a specific date on which the defendant Kevin Huff's Motion for Reconsideration and Notice of Appeal (Rec. Doc. Nos. 168 and 169) were submitted to prison officials can be determined from the records of the Court and the record reflects that both were timely filed — i.e., constructively filed no later than November 6, 2008 under the "mailbox rule" applicable to pro se prisoner filings. In any event, the requisite "good cause" exists since the defendant had no control over either the prison inmate mailing system or the United States Postal Service.
The best information available to the Court is that appearing in the record of this case. The plaintiff's Certificate of Service attached to the Motion for Reconsideration is dated by him on November 5, 2008. Clearly both the aforesaid motion and Notice of Appeal were tendered to prison officials on the same date in an envelope bearing the postage meter stamp date of November 6, 2008 and both were stamped received by the Clerk of Court for the United States District Court for Eastern District of Louisiana on the same date (November 24, 2008). Therefore,
Rec. Doc. Nos. 168 and 169.
Id.
IT IS ORDERED that this matter be returned to the United States Fifth Circuit Court of Appeal for further proceedings in connection with the pending Appeal as directed in the remand order (Rec. Doc. No. 176).