Opinion
No. 3:02-CV-1117-D.
April 28, 2005
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an Order of Reference dated March 16, 2005, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
On March 8, 2005, the Fifth Circuit Court of Appeals remanded this case for determination of whether petitioner's Notice of Appeal was delivered to prison officials for mailing on or before January 14, 2005. By Order of Reference dated March 16, 2005, the matter was referred to the undersigned Magistrate Judge for a recommendation concerning whether petitioner's notice of appeal was timely delivered.
To ascertain whether petitioner timely filed the notice, the undersigned Magistrate Judge sent a petitioner a questionnaire requesting that he provide the date he deposited the notice in the internal mail system of his institution. Petitioner responded and verified that he placed his Notice of Appeal in the prison mail system on January 14, 2005. Using that date as the date of filing, it appears that petitioner timely filed his notice of appeal.
Under the prison mailbox rule, a federal habeas petition is deemed filed when the prisoner delivers the petition to prison authorities for mailing to the court. See Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999).
II. RECOMMENDATION
For the foregoing reasons, it is RECOMMENDED that the Court find that petitioner timely filed his notice of appeal by placing it in the prison mail system on January 14, 2005.