Pease v. Raemisch
673 F. App'x 877
| 10th Cir. | 2016Background
- Pease, a Colorado state prisoner convicted in 1998 of sex offenses, filed a § 2254 habeas petition in Feb 2016 alleging an ex post facto violation.
- The petition was filed after AEDPA’s one-year limitation; Pease sought equitable tolling, which the district court rejected and dismissed the petition as time-barred on May 23, 2016.
- Pease moved for reconsideration and for extra time to appeal; the district court denied reconsideration but granted a 30-day extension to file a notice of appeal (deadline July 20, 2016).
- Pease’s notice of appeal was filed July 21, 2016 — one day late — prompting jurisdictional review by the Tenth Circuit.
- The Tenth Circuit asked Pease to show compliance with the prison-mailbox rule (Fed. R. App. P. 4(c)); Pease submitted a mail log and a response but did not provide the required sworn declaration or notarized statement or show use of the institution’s legal-mail system.
- The court concluded Pease failed to meet the pre-amendment Rule 4(c) requirements, denied him the mailbox-rule filing date, found the appeal untimely, dismissed the appeal for lack of jurisdiction, and denied in forma pauperis status.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Pease’s notice of appeal was timely under the prison-mailbox rule | Pease contends his filing should be treated as timely under Fed. R. App. P. 4(c) because he deposited the notice in the prison mail system before the deadline | Court/respondent argues Pease failed to show compliance with Rule 4(c)’s requirements (use of legal-mail system if available; sworn declaration or notarization showing date and prepaid postage) | Held: Not timely — Pease did not satisfy Rule 4(c) requirements, so appeal is untimely and the court lacks jurisdiction |
| Whether Pease showed he used the institution’s legal-mail system (when available) | Pease relied on a mail log and reference to institutional mail to show mailing | Court argued that invoking the mailbox rule requires affirmative showing that the institution’s legal-mail system was used when such a system existed | Held: Pease failed to show use of a legal-mail system; mere reference to institutional mail or a mail log is insufficient |
| Whether an unsworn mail log/statement suffices under 28 U.S.C. § 1746 | Pease argued his mail log and receipt established mailing and postage withdrawal | Court/respondent required a declaration under penalty of perjury or notarized statement specifying date of deposit and prepaid postage as mandated by Rule 4(c) and § 1746 | Held: Unsworn statements and a mail log do not satisfy the required sworn declaration or notarization; insufficient to invoke mailbox rule |
| Whether in forma pauperis should be granted | Pease sought IFP status on appeal | Court noted Pease failed to comply with Fed. R. App. P. 24(a)(5) and did not present a nonfrivolous, reasoned argument | Held: IFP denied for noncompliance and failure to show a reasoned nonfrivolous appeal |
Key Cases Cited
- Ogden v. San Juan Cty., 32 F.3d 452 (10th Cir. 1994) (pro se filings are liberally construed but must follow procedural rules)
- Bowles v. Russell, 551 U.S. 205 (U.S. 2007) (timely filing of a notice of appeal is jurisdictional)
- United States v. Ceballos-Martinez, 387 F.3d 1140 (10th Cir. 2004) (timely notice of appeal is a jurisdictional prerequisite)
- Bouie v. City of Columbia, 378 U.S. 347 (U.S. 1964) (definition and scope of ex post facto violations)
- Price v. Philpot, 420 F.3d 1158 (10th Cir. 2005) (prison-mailbox rule requires proof of use of legal-mail system if available and a sworn declaration or notarization)
- Sweets v. Martin, [citation="625 F. App'x 362"] (10th Cir. 2015) (unsworn references to institutional mail insufficient to invoke mailbox rule)
- Rolland v. Primesource Staffing, LLC, 497 F.3d 1077 (10th Cir. 2007) (standard for demonstrating nonfrivolous argument on appeal for IFP consideration)