Michael Nichols v. Michael Bowersox

(6th Cir.1997), F.3d 1193 while conducting ministration. judgment The of the district an investigation allegations into of an em court is therefore affirmed. misconduct, ployee’s the agency inter

viewed approximately thirty about people ARNOLD, RICHARD S. Circuit Judge, employee’s misconduct before inter concurs in the judgment. viewing employee. contrast cases, these merely Darst’s situation in

volved a review of the agency’s file relating

to his application coverage. The SSA

did not party contact third to gath sources

er information. The impro indications of

priety apparent from the face of the

documents and sequence from the of events the application file re NICHOLS, Michael Appellant, vealed that the hearing was held on the v. same day and in the hearing office where Darst reasons, worked. For these BOWERSOX; there Michael (Jay) Jeremiah was no need to interview Darst Nixon, about Attorney General sequence of events. As the district court Missouri, State of Appellees. rioted, Privacy Act does not require Crane, Richard L. Appellant, that the information be collected directly from the individual in all circumstances. The Act merely requires that agency Dormire, Dave Superintendent; Jeremi do so “to greatest practicable.” extent (Jay) Nixon, ah Attorney General, The District Columbia Circuit Court of MO, Appellees. State of Appeals’ ruling in Bruñe noted that under investigation statements which were 97-3639, Nos. 97-3640. made an IRS agent already provid had government ed the States Court Appeals, with the agent’s ver sion Brune, Eighth facts. 861 F.2d at Circuit. 1287. Under circumstances, these the court Sept. 23, Submitted

found that was necessary to contact the agent April first Decided interviewing before third parties. Here the information in the appli

cation coverage file obviated the need

to interview Darst or persons. third

data on the documents themselves was

sufficient to create the appearance of im

propriety and the appearance preferen

tial treatment.

We find agency conduct does

not constitute a violation the Privacy 552a(e)(2).

§Act Because we find that

SSA 552a(e)(2) did not violate in collect-

ing the did, information it the Court need

not address other issues which Darst

raised in appeal. this

III.

In summary, we conclude that the dis-

trict did not err in granting sum-

mary to the Social Security Ad- MO, Elston, City,

Michael J. Kansas Ziesman, briefs), argued (Jeffrey A. on the Appellants. City, K. Dolgin, Cassandra Jefferson (Jeremiah MO, Nixon, argued (Jay)W. brief), Appellees. BOWMAN, Before Judge, Chief and McMILLIAN, ARNOLD, RICHARD S. WOLLMAN, BEAM, FAGG, LOKEN, HANSEN, MORRIS SHEPPARD ARNOLD, KELLY,1 MURPHY Circuit Banc. Judges, En McMILLIAN, Judge. Circuit cases, In these consolidated Michael L. Crane (together Nichols Richard away argument September Kelly passed following 1. The Honorable D. oral John opinion on October is consis- 1998. This tent with conference his en banc vote at the “petitioners”) referred to as appeal from imprisonment without the possibility pa- final judgments entered in the United role for first degree murder. He con- States District Court for the Dis Western victed of first degree murder the Circuit trict of Missouri dismissing their respec Court of Jackson County, Missouri, and tive petitions for writs of habeas corpus his conviction was affirmed on appeal by pursuant filed § to 28 U.S.C. 2254. Nich the Missouri Court Appeals on Febru- Bowersox, ols v. No. 97-0666-CV-W-3-P ary Nichols, 1996. State v. 915 S.W.2d (W.D.Mo. 20, 1997); Aug. Crane Dor 795 curiam). (Mo.Ct.App.1996) (per Nich- mire, (W.D.Mo. No. 97-0673-CV-W-3-P ols did not petition file a for a writ of 20, 1997). Aug. reversal, For they argue certiorari in the United States Supreme that the district court erred in dismissing Court. The in mandate his criminal case their petitions as untimely filed under the 11,1996. issued April one-year period of limitation imposed by 2244(d), § which was enacted as Nichols, se, acting pro filed his part of the Anti-terrorism and Effective § petition 2254 for a writ of habeas corpus Death Act Penalty (“AEDPA”). of 1996 through the prison mail system. He In an earlier proceeding, a divided panel signed petition on April 1997. It court this the judgments reversed was “provisionally filed” by the district the district court and remanded each case court clerk’s office April 1997. On to the district court for proceed further May 1997, the district court dismissed ings. However, this court subsequently Nichols’ for failure to correct tech panel vacated the opinion granted nical defects. On June the dis suggestion for rehearing en banc by trict court reopened case, denied Nich Michael (to Bowersox and Dave Dormiré ols leave to proceed in pauperis, gether referred to as “respondents”). and ordered him pay the filing fee. Upon by consideration the full court and paid Nichols fee, the filing which was re below, the reasons stated we reverse by ceived on July 15, the judgments of the district court and 1997. In meantime, respondent Bow- remand for further proceedings consistent ersox moved to dismiss as with opinion. this untimely filed under 2244(d). § U.S.C. Jurisdiction in the district court was On August 1997, the district court upon based U.S.C. §§ 2254. Jur- granted Bowersox’s motion to dismiss. isdiction this court is upon based The district court issued a certificate of 1291,2253(a). §§ U.S.C. appealability on the question of “whether the prison mailbox rule announced in Background Houston v. 487 U.S. Nichols v. Bowersox 2379, 101 L.Ed.2d 245 (1988), should now Petitioner Nichols is currently serving, apply to the filing of corpus peti among other sentences, a sentence of life tions.” Nichols appealed. that, 2. We note when this case originally jurisdiction cising present case. We do argued panel, before the respondents disputed 2253(c) § think is intended preclude all jurisdiction court of appeals on the review of preliminary procedural issues, such ground petitioners that had failed to make a as the question limitations us. now before substantial showing of a denial of a constitu- We 2253(c) read as addressing only sort right, tional as required under 28 U.S.C. of showing required for a to obtain 2253(c)(2), and therefore the certificate of appellate review of the merits of his or her appealability was granted. improvidently Al- claims for habeas corpus §or 2255 relief. though respondents did not reassert ar- Otherwise, a final order by a entered gument when this case was reheard our court based upon a question antecedent banc, court en we jurisdiction- believe that the merits, if adverse to petitioner, nev- could al warrants some Upon discussion. er be reviewed on appeal. we While assume careful consideration, we conclude that Congress has the 2253(c)(2) power such establish does not preclude us from exer- court. The limitation period v. Dormire shall run Crane from the latest of— was convicted on De- Petitioner Crane (A) the date on which the 3, 1992, in the Circuit Court of cember became final Missouri, conclusion di- County, degree second Jasper rect expiration review or the stealing and was sentenced burglary and review; seeking time for such twenty years terms of and one The Missouri Court of year, respectively. (B) the date on which the impediment his conviction on June Appeals affirmed to filing created 28, 1994. The mandate in his criminal State action in violation of the Consti- 14,1994. July case issued on tution or laws United States is removed, applicant if the was prevent- se, Crane, filed his acting pro by action; ed from filing such State a of habeas petition corpus writ system. (C) through the mail He the date on which the constitu- petition April the on 1997. It signed right initially tional asserted was rec- by filed” “provisionally Court, ognized by Supreme the if the April court clerk’s office On right newly has been recognized by 30, 1997, granted the district court June Supreme the Court made retroac- and pauperis. to proceed Crane leave tively applicable to cases on collateral informa 14, 1997, Dormiré July respondent On review; or petition to dismiss Crane’s as un- moved (D) the on which the factual 2244(d). § timely under 28 U.S.C. filed predicate pre- of the claim or claims granted Dormire’s mo- The district sented could have been discovered August tion to dismiss on 1997. The through diligence. the exercise of due appeal- court issued a certificate of (2) The time a during properly ability on the of “whether application for State post-conviction rule in prison mailbox announced Houston respect or other collateral review with 487 U.S. 108 S.Ct. pertinent judgment pend- or claim is (1988), apply should now any shall not be toward ing counted filing corpus petitions.” of habeas period of limitation under this subsec- appealed. Crane tion. 2244(d). § Prior to the 1996 Discussion AEDPA, statutory enactment of the no 2244(d) Section period imposed of limitation was 24, 1996, one-year April period On a of petitions pursuant habeas federal court petitions limitation for went §to 2254.3 part into effect as of the AEDPA. 28 triggering Determination date under 2244(d). § provides: U.S.C. The statute 2244(d)(1)(A) (1) 1-year period A of limitation shall one-year imposed to an for a writ of limitation apply period 2244(d)(1) corpus by person custody by begins U.S.C. to run on pursuant judgment possible triggering to the of a State the latest of several ability regime, prejudiced we do not think it intended to do so officer has been in its when it enacted the AEDPA. respond petition by delay to the in its shows that it is based unless AEDPA, 3. Prior to the 1996 enactment grounds have had of which he could not the time available file knowledge by the exercise of reasonable limitation, entirely was not however. without diligence prejudi- before the circumstances subject eq- to traditional Such to the state cial occurred. laches, as well as the uitable such as doctrines Cases, Rule Governing Rules 9(a); Section 2254 following adopted rule advisory notes. see also id. committee’s appears if it petition may A be dismissed respondent is the state which dates. both For Crane, Nichols and by entered a state court of last resort or relevant triggering date is that which is a United States court of ... appeals is 2244(d)(1)(A) §in described as “the date timely when it is filed with the Clerk on which judgment by became final this Court days within 90 entry after conclusion of direct review expira or the judgment. A for a writ of tion of time for seeking such review.” certiorari seeking review of a judgment Bowersox, In Smith v. 159 F.3d of a lower state court that subject (8th Cir.1998), cert. denied, - U.S. -, discretionary review by state court (1999), 143 L.Ed.2d 126 of last resort is timely when it is filed 2244(d)(1)(A) was interpreted by panel with the Clerk within days en- after of this court as follows: try the order denying discretionary the running of the statute of limitations review. 2244(d)(1)(A) imposed § is triggered Based upon the information contained in (i) by either the conclusion of all direct record, taking into account Smith criminal appeals in the system, state Court Rule say we can followed either completion or de- with certainty that Nichols’ be- nial of certiorari proceedings before the came final within the meaning (ii) Court; States Supreme if § 2244(d)(1)(A) no earlier than May certiorari was sought, then 1996, exactly 90 days after his conviction conclusion of all direct appeals criminal was affirmed on direct appeal. According- in the system state followed by the expi- ly, Nichols had at least until midnight on ration of the time allotted for filing a 19, May 1997, in which to file his petition for writ. for a writ of habeas corpus under The Smith decision was filed one 2244(d)(1)(A). § terms See month the present after case was argued Smith, 159 F.3d at 348 (Supreme Court’s and submitted to Now, the court en banc. denial of plea for writ of certiorari on Smith, in light of we will consider the 3, 1997, November began running of stat- dates on which Nichols’ and Crane’s re ute limitations, meaning petitioner had spective state court judgments became fi until midnight 2, 1998, November nal within the 2244(d)(1)(A). § meaning of petition for corpus relief in federal record this case indicates that nei court). Crane, on the hand, other ther Nichols nor Crane a petition for convicted in state trial court in 1992. His writ of certiorari in the United States conviction was by affirmed the state court Supreme Court. Respondents’ See Appen of appeals on 28, June 1994, and the man- 1, dix at 52. Smith, According to date in his criminal case 14, issued on July dates on which the judgments became final 1994. Therefore, we can say with certain- within the 2244(d)(1)(A) meaning of are ty that his judgment became final within therefore determined “the conclusion of meaning 2244(d)(1)(A) well before direct all criminal appeals in the sys state the AEDPA became effective on April tem followed expiration of the time 1996. allotted a petition for the writ [of Thus, Id. period certiorari].” each petitioner’s Grace rule state court judgment became final under Believing that the state court judg 2244(d)(1)(A) upon the expiration of his ment against each became final time to file petition for a writ of certiora- prior to the effective AEDPA, ri. the district court assumed for purposes of Rule 13 of Court Rules applying 2244(d)(1)(A) that each of them provides in relevant part: had year one after the effective date of the law,

Unless provided by otherwise a AEDPA in which to file his habeas peti petition for a writ of certiorari to review tion. In words, other , the district court a judgment case, criminal, in any civil or adopted a one-year grace period of a one- application agreed in all cases where have with of habeas they became although final be- have judgment year grace period, court the state above, explained As April 1996. question fore on the of whether been divided state out that Nichols’ court 23, 1997, now turns April ends on or grace period final before the did not become 24,1997. April Compare, e.g., Flanagan v. Thus, effective date of AEDPA. (5th Johnson, 200-02 Cir. 154 F.3d one-year of whether or not a 1998) deadline); April 24 Ross v. (applying period apply should is now moot grace (2d Cir.1998) Artuz, 150 F.3d 99-103 However, respect grace with to him. (applying April clarifying 24 deadline and rule remains a relevant issue in period Cir.1997)), (2d Demskie, v. Peterson F.3d 92 because, above, the Crane’s case as noted Morton, Bu rns 134 F.3d with judgment in his state criminal case became (3d Cir.1998) 109, 111 (applying April 23 prior April Upon careful final deadline); Calderon v. United States Dis review, we en banc now hold (9th Court, trict 128 F.3d Cir. not err in a one- applying did 1997) deadline), April 23 cert. (applying for the of Crane’s year grace period — denied, -, corpus petition. (1998); United States v. Sim of a new limitation application When (10th Cir.1997) monds, 111 F.3d claims period wholly would eliminate deadline); (applying April 23 Lindh v. rights for substantive or remedial ac- Murphy, (applying April 96 F.3d at 866 timely tions considered under the old deadline). dispose order is law, the ret- impermissibly necessary it is appeal, sues in Crane’s legislature roactive. The cannot extin- grace period whether the for us to decide existing action en- guish cause of 23, 1997, April April precisely ended acting period a new limitation without Accordingly, we hold that a one- providing first a reasonable time after on year filing grace period, beginning the effective date of the new limitation 24, 1996, apply peti shall for habeas April period in which to initiate the action. triggering the relevant date tions where Indeed, the Court stated has 2244(d)(1) § precedes 28 U.S.C. under newly-enacted that of limita- statutes (but 24, 1996 we leave for another April tions must allow a reasonable time after day 23-versus-April 24 deadline April the they take effect for the commencement issue). upon existing of suits causes of action. (4th Angelone, Brown v. 150 F.3d 373 Prison mailbox rule Cir.1998) (citations (Angelone) and inter turn to the more We now difficult omitted). quotation nal In our marks appeals: these whether presented issue after opinion, reasonable time the effec timely filed—that petitions or not the were allowing tive date of the AEDPA for suits is, they “filed” within the whether upon to commence causes of pre-existing 2244(d) § on or meaning of 28 U.S.C. be year. (holding action is one Accord id. Uncontra- applicable fore the deadlines. required that the “reasonable time” that evidence in the record indicates dicted “coalesce”) one-year statutory period the their petitioners deposited petitions (quoting Lindh v. 96 F.3d Murphy, mail on the respective prison systems their (7th Cir.1996) (en banc), 866 rev’d on other day they signed petitions. that their same grounds, 521 138 117 S.Ct. Assuming that purposes to be true for (1997)); States v. dismiss, Nichols respondents’ motions to (5th Flores, Cir. 135 F.3d 1002-06 peti and Crane would have their deposited 1998) year is “reasonable (holding that one in the prison systems April tions mail on grace § 2255 period” period), purposes — 20, 1997, April 21 and Based respectively. U.S. -, denied, rt. ce the upon dates on (1999). petitions which their 846, 142 The courts of L.Ed.2d “provisionally filed,” this issue were addressed appeals have court clerk’s office presumably received district reluctantly court concluded that it Nichols’ and petitions Crane’s on April 28 could apply prison not the mailbox rule to 29, 1997, April respectively. petitioners’ More- filings light of our over, after being denied proceed pre-AEDPA leave to Dowd, decision in Allen v. (8th pauperis, Cir.1992). Nichols did pay his F.2d In Allen v. informa Dowd, filing until July fee petitioner Crane sought ob- to bring a tained leave to proceed 2254 habeas action in pauperis to challenge on his June 1997. Our determination of conviction. After waiting some eight years conviction, whether Nichols and after the timely Crane and with filed only 2244(d) days their five under of the relevant sentence therefore whether, remaining, placed he depends on his pro se purposes of that petition in prison system. mail statutory provision, The is deemed petition was not received filed on the date it deposited in court until after the sentence prison system, mail had been the date it is received completed. On appeal, a panel of this by the district court office, clerk’s or the rejected petitioner’s argument date of some event other as such the pay- prison mailbox rule should be ment fee or the district court’s applied to preserve the timeliness of the granting of leave to proceed pau- informa filing. This court held that the petition peris. was the date it was received Petitioners have urged this court to district court and was there apply “prison which, mailbox rule” as fore not “in custody” on the relevant sen the name suggests, would establish the tence at the time his as the date on which the filed. rejecting petitioner’s invita prisoner puts the proverbial “letter” in the tion to extend holding in Houston v. proverbial words, “mailbox”—in other the Lack it, case before this court rea . date which he or deposits she peti soned: “Lack is limited to notices of ap tion in the prison system. mail The prison peal, which have 30-day deadline under mailbox rule traditionally and appropriate 2107(a) and Fed.R.App.P. ly applies only to pro se inmates may who 4(a)(1). This case does not concern a no have no means to file legal documents tice of appeal or other awith 30-day except through system. mail Dowd, deadline.” Allen v. 964 F.2d at 746 That requirement is no impediment to the (citations omitted). panel then contin application of the prison mailbox rule in “Moreover, ued: this court has recently this case because each petitioner filed his held that filing does not occur in a habeas pro se. case until the has paid either the In or Lack, fee been Houston v. granted 487 leave proceed to U.S. 108 pauperis.” S.Ct. 101 Id. (1988), (citing L.Ed.2d Weaver 245 v. the Pung, (8th 925 Supreme F.2d Cir.), Court 1099 applied prison the cert. mailbox denied, 502 rule U.S. a 112 to notice appeal of S.Ct. from a 116 federal (1991)). L.Ed.2d district court’s denying habeas relief. The Supreme Court pro held that a We granted suggestion the for rehearing prisoner’s se of appeal “filed,” notice is for en banc in present the in part case to purposes of the applicable filing deadline, the address meaning vitality of Allen at the moment of delivery to prison au- v. Dowd the following enactment of the for thorities to forwarding the district AEDPA. Under this regime, new we now court.4 In the bar, however, at cases the hold that Allen v. Doivd is no longer viable five years (c), after Supreme the section substantially codifying the rule of Court's Lack, decision in Houston v. Now, v. Houston Lack. as a of a result S.Ct. (1988), amendment, 101 L.Ed.2d 245 a more detailed version of the Rule 4 of the Federal Rules Appellate of Pro- rule is 4(e)(1) contained in Rule of the Federal by cedure amended the addition Rules Appellate of sub- Procedure. anony- The pro incon- se does not prisoner as may be read to the extent that mously in a prison drop appeal his notice sistent with the public pris- mailbox—he hands it over to mailbox a habeas rule to 2244(d). by well-developed on authorities have governed is who the procedures recording for rationale in Hous- Supreme Court’s they at receive for papers time Lack, the extension of the explaining ton v. readily and who can mailing dispute 30-day rule to the deadline mailbox prison that he assertions delivered prisoner’s cases, appeal for notices on a date. Because paper the different present in the context. most instructive is logs gener- mail prison reference will Supreme Court In Houston mak- ally straightforward inquiry, be a reasoned: pro turn on the date the se ing filing seeking to prisoners The situation prisoner prison delivers the notice to the aid of counsel is without appeal mailing bright-line authorities for is a litigants may choose unique.... Other rule, Relying an uncertain one. vagaries to the appeals entrust their contrast, receipt, by raises the date process the clerk’s of the mail and questions resolve as such difficult to only but incoming papers, stamping delays whether United States by his forced to do so prisoner se pro ne- Postal Service constituted excusable Worse, pro prisoner se situation.... glect stamped and whether a notice to entrust the forward- has no choice but actually on one date was received appeal prison “filed” of his notice of ing or he cannot control authorities whom earlier. may every have in- who

supervise and (footnote omit- Id. at matter far in delay. No how centive ted). context, prison In the his prisoner se delivers pro advance observe, argu- policy on to Court went authorities, can he prison notice to the all the favoring the mailbox rule are ments ultimately get that it will never be sure if, compelling example, because more And if there is stamped “filed” on time. pris- arise over whether the dispute should attribut- suspects is delay prisoner dilatory, on was authorities, he is un- prison able to the only with party will be prison [t]he it, any proving means of likely to have of the evidence access to at least some prevents him from for his confinement questions to resolve such needed —one sufficiently to monitoring process rule is meant general of the vices delay part prison on the distinguish is- any evidence on of these avoid—and or the from slow mail service authorities to come for the will be hard sues notice stamp failure to court clerk’s cell, confined to his who can prisoner law, Unskilled on the date received. whether the usually only guess counsel, leave and unable to unaided Service, authorities, the Postal process- over the his control prison, any delay. blame for clerk is to necessarily ceases as of his notice ing 276, 108 Id. at S.Ct. only it over to the as he hands soon one-year have a limita- we now Because he has access— officials to whom public petitions, tion period only in- prison authorities —and of the AED- the enactment whereas before likely he will have is date formation statutory peri- limitation no to PA there was prison the notice those he delivered all, that the Supreme believe ultimately at we authorities and the od ap- in Houston v. Lack reasoning on his notice. stamped Court’s virtually equal force to the issue plies with 270-72, 108 U.S. at S.Ct. 487 us. presently before for the grounds discussing policy nevertheless maintain that rule Respondents mailbox in of the application prison “prison mailbox rule” case, of the Court observed: that the Supreme 1076

petitioners’ § pro 2254 se would 4”) lowed by Rule 4(a)(1) and Rule of the directly conflict with Rule 3 of the Rules Federal Rules of Appellate Procedure Governing Cases, Section 2254 which were (“the notice appeal required by 3 Rule promulgated by the Supreme Court and shall be filed with the clerk of the district approved by Congress in 1976. Respon- court within days after the date entry argue dents that Rule 3 is not merely of judgment or order from”). appealed procedural but, fact, in defines what is Notably, the Supreme Court concluded required for a petition to be those rules appellate procedure deemed “filed.” They highlight the lan- were not an obstacle to the application of 3(a) guage in Rule that a 2254 petition the prison mailbox rule. The Supreme “shall be filed in the office of the clerk of Court explained: the district court” and the language in 3(a) 4(a)(1) Rules and ... specify that 3(b) Rule stating that the clerk of the the notice should be filed “with the clerk district court “shall file the petition” and of the district is, court.” There howev- enter it on the court’s docket “[u]pon re- er, no dispute here that the notice ceipt of must the petition fee, and the filing be directed to the clerk of order granting leave to the petitioner to delivery of proceed notice of appeal pauperis, and having court— forma prison authorities ascertained that would petition not appears any under on its face theory to comply constitute a with “filing” rules and 3 unless [of the Rules notice Governing Section 2254 delivered for Cases].” forwarding Respondents therefore conclude court. that a The question is one prisoner’s pro se habeas timing, not destination: whether the filed, for purposes of applying 28 U.S.C. moment of “filing” occurs when the no- § 2244(d), until the clerk of the district tice is delivered to the prison authorities court has received the petition, has re- or at some juncture later process- its ceived the filing fee or an order granting ing. 3(a) 4(a)(1) [Rules áre not ] leave to proceed in pauperis, and dispositive on this point, for neither Rule has ascertained that appears sets forth criteria for determining the on its face to comply with Rules 2 and 3 of moment at which the “filing” has oc- the Rules Governing Section 2254 Cases. curred. In support of this argument, respondents 272-73, Id. at 108 S.Ct. 2379 (citing Fallen also emphasize the facts that Congress did v. States, 139, 144, not amend Rule 3 at the time it enacted S.Ct. (1964) (Stewart, the AEDPA in 1996 nor has Congress J., joined by Clark, Harlan, Brennan, amended Rule in3 years few since JJ., concurring) (concluding that the mail- then. box rule should apply pro se prisoner’s We disagree with respondents’ construc filing of notice of appeal from judgment of tion of Rule 3 of the Rules Governing conviction, under 37(a) former Rule Section 2254 Cases. We note that a simi Federal Rules of Criminal Procedure, lar question of interpretation was ad which is now substantially contained in dressed the Supreme Court in Houston 4(b) Rule of the Federal Rules of Appel- 487 U.S. at 272-73, 108 S.Ct. late Procedure)). when the Court considered whether the Similarly, we mailbox hold that rule Rule could be applied filing of a Rules pro Governing se prisoner’s Section 2254 notice of appeal Cases is not consistent dispositive 3(a) with Rule the present of case. Federal As noted Rules of above, Appellate 3(a) (“[a]n Rule Procedure appeal instructs the peti- permitted by law as of tioner right that from a petition district the “shall filed in be court to a court of appeals the of shall office be taken the clerk of court”; by filing a notice of appeal 3(b) with the clerk Rule further instructs the clerk of the of the district court within the al- time district court to file the petition “[u]pon to history or fee, legislative elsewhere filing or in the the and petition the receipt of time the was that, the AEDPA to at petitioner suggest to the leave granting order an enacted, intended hence- having Congress that pauperis, proceed legislative on its have the appears 3 would petition the Rule that forth ascertained These de- 2 and 3.” the criteria for setting rules forth comply with effect of to face to where petition the at a tell the which termining therefore moment rules office clerk’s ap- and tell the of for petition purposes the filed to be deemed send is received. once petition the process one-year to limita- enacted plying newly how the however, ques- the not, address They do period. tion whether, for us, is before now tion period one-year that, sum, purposes the for of hold applying we

purposes 2244(d), the 2244(d), imposed pro a se limitation applying of of U.S.C. petition occurs when of for a writ of habeas petition moment prisoner’s prison authorities to to is delivered is the date it delivered corpus is Rules Gov- The event. some later upon the clerk mailing for to prison authorities disposi- not are 2254 Cases erning Section Nichols Accordingly, the court.5 of because particular this tive on petition timely filed his each Crane 3(b) ever 3(a) nor Rule Rule neither relief in district corpus for habeas cri- to set forth by Congress intended court. of that moment determining when teria for Indeed, time at the has occurred. Conclusion statutory limitation no adopted, Rule 3 was above, existed. petitions we § 2254 habeas set forth for period For the reasons to assume Therefore, illogical would be court it of district judgments reverse for time at that intended Congress untimely that as filed. dismissing petitions determining for criteria to set forth Rule 3 cases are remanded consolidated These “filed” be would deemed petition when a for further proceedings court statutory limita- a applying of purposes for opinion. with this consistent period. tion Moreover, Congress that mere fact dissenting. BEAM, Judge, Circuit specifically Rule 3 not

has amended jurisdiction has no this court I believe rule for the mailbox incorporate matter. considered in this issues decide Congress so filing of habeas —as to make failed applicants have 4(c) Rules of the Federal Rule amended consti- of a showing of a denial substantial after the years five Procedure Appellate by 28 U.S.C. required right as tutional in Houston ruling Court’s 2253(c)(2). Thus, ap- the certificates Congress If dispositive. is—also not Lack court by the district issued pealability to set for Rule 3 intend originally not did noted granted. As improvidently determining when for the criteria forth 1070-71, at opinion, supra 2 of its footnote pur- “filed” be deemed would section simply rewrites statutory limitation applying poses could 2253(c)(2), Congress that contending that cannot be inferred certainly it period, very say to” what “intended have any such preserve Congress intended say. authority to had full clearly says and Congress failed because simply criteria disagree. I approach, this any evidence Nor is there With Rule 3. amend filing”; day for the last on or before tem moreover, consistency, adopt the we the sake 5. For system by a type institution has ”[i]f for this requirements same mail, appeal to notices of use applies as must pro legal inmate designed se inmate 4(c)(1) Federal Rules pursuant to Rule rule.” to receive the benefit of this system Accordingly, proa se Appellate Procedure. 4(c)(1) (effective Dec. Fed.R.App.P. See timely filed "if it is § inmate’s 1998). sys- internal mail institution’s deposited in the If I merits, were to reach the I would ed showing on the merits (perhaps in an affirm. case, this facts, we deal with appropriate case accompanied by an offer rules and policies far than different those of proof) before he or she can take an considered Court in Hous- appeal, even aon matter unconnected with ton v. merits, (if is a perfectly rational rather (1988). Accordingly, I cumbersome) one. The court does not would affirm this upon case the well-rea- even consider possible this construction of opinion soned of the district court. proceeds statute and to judgment the face of what seems to me to be an MORRIS ARNOLD, SHEPPARD jurisdictional unmistakable barrier. Circuit Judge, dissenting. I would therefore dismiss these cases for I respectfully dissent. The statute un- jurisdiction. lack of der which the court purports to exercise jurisdiction in these cases provides that no

appeal can be taken from a “final order” in

a habeas case unless “the applicant has

made a substantial showing of the denial of

a constitutional right.” See 28 U.S.C.

§ 2253(c)(2); see also 2253(c)(1)(B). It is indisputable and un-

disputed that the district court has entered a “final order” in these cases and that the Alexis M. HERMAN, Secretary applicants have not “made a substantial Labor; Department showing aof denial of a constitutional Labor, Appellees, right.” Despite plain wording statute, ASSOCIATED ELECTRIC the court proceeds to decide these cases in COOPERATIVE, INC., the professed belief, for reasons that Appellant. disclose, does not that Congress could not have intended to foreclose appeals when a No. 98-1876. district court entered a final order habeas case on a States Court of Appeals, antecedent the merits. I have no Eighth similar Circuit. difficulty with the statute: The whole point of the Submitted Dec. AEDPA and the PLRA was to reduce incidence prisoner litigation in April 20, Filed federal courts because of widespread public dissat- isfaction with the justice criminal system. Since the objective statute’s is advanced by reducing the number of appeals in habeas

cases, there is no reason to wonder why

Congress would want to do that. More

importantly, ours is not to why: wonder The statute rather plainly forecloses the appeal, and we ought simply read its

words and apply them. is,

There moreover, a construction of the

statute that would allow habeas petition- er an appeal even if the final order in his

or her case is entered prelimi- on matter nary to the requirement merits. A

the prisoner kind make some of abbreviat-

Case Details

Case Name: Michael Nichols v. Michael Bowersox

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Apr 13, 1999

Citation: 172 F.3d 1068

Docket Number: 97-3639, 97-3640

Court Abbreviation: 8th Cir.