NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a mаterial issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all рarties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
UNITED STATES of America, Plaintiff-Appellee,
v.
Scott A. WARNER, Defendant-Appellant.
No. 94-3270.
United States Court of Appeals, Tenth Circuit.
May 11, 1995.
After examining the briefs and appellate recоrd, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. Thе case is therefore ordered submitted without oral argument.
Defendant appeals from a district court order denying relief under 28 U.S.C. Sec. 2255. As еxplained below, we affirm the result reached by the district court, but express our concern regarding its enforcement of a restrictive understanding of the prison mail rule established in Houston v. Lack,
On a prior appeal, this court affirmed the district court's dismissal of all but two of defendant's Sec. 2255 claims, and rеmanded the case for a determination whether defendant's procedural default of those claims (i.e., failure to raise them on dirеct criminal appeal) should be excused under "cause and prejudice" or "fundamental miscarriage of justice" principles. See United States v. Warner,
Dеfendant, a federal prisoner, submitted his supplemental pleading with a certificate of service indicating it was mailed "in accordance with Houston v. Lack,
On appeal, the government offers a singularly unpersuasive justification for the district court's disregard of defendаnt's incarcerated status in connection with the timeliness issue. Focussing on the limited (i.e., appellate) scope of Fed. R. App. P. 25(a) (inmate appellate submissions "are timely filed if [timely] deposited in the institution's internal mail system"), and studiously avoiding any reference to Houston and its progeny--from which the appellate rule derives, the government argues that the inmate mail rule does not apply to district court submissions.
Virtuаlly every federal circuit has recognized that the following policy and practical considerations supporting the Houston rule are equally applicable to filings in district court proceedings:
Central to the Court's holding in Houston is its concern for fairness in recognition of the 'unique' disadvantages of an incarcerated pro se litigant for court filings.
In establishing a brightline rule in Houston, the Court clearly sought tо place pro se prisoners on an equal footing with other litigants who are not impeded by the practical difficulties encountered by incarcerated petitioners in meeting filing requirements.
Garvey v. Vaughn,
That said, we agree with the district court's assessment of the substantive inadequacy of defendant's supplemental pleading. Aside from plainly inaccurate and/оr obsolete case law references to the undefaultable character of constitutional habeas claims, defendant's рosition consisted of the conclusory assertion that his appellate counsel failed to raise issues, concerning the improper use of evidence at sentencing, on which he would have prevailed and secured a significant reduction in sentence. The supplemental pleading does not, with any particularity, identify the offending evidence, demonstrate its inadmissibility, or show how its consideration affected the sentence imposed. In short, defendant simply provided no basis for the district court to find the requisite cause, prejudice, or fundamеntal miscarriage of justice to justify consideration of the defaulted claims on the merits.
The judgment of the United States District Court for the District of Kansas is AFFIRMED.
Notes
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms аnd conditions of the court's General Order filed November 29, 1993.
We do not mean to suggest that the docket entry date is controlling in every case of this sort. However, where, as here, the directive language used in the order is ambiguous, the entry date is formally and prominently displayed, and thе (one day) difference between signing and entry is plainly de minimis, it would be an abuse of discretion to employ the signature date of an order as the basis for dismissing a pro se litigant's good faith responsive pleading as untimely
The government also objects, in perfunctory fashion, that although defendant included a signed certificate stating that he mailed the supplemental pleading on June 24, 1994, the certificate did not include sоme of the elements Rule 25(a) cites as sufficient indicia of timely mailing. The government does not explain why these are to be treated as necessary conditions, or why they apply to filings the rule itself does not govern. Moreover, the government states at several points that the date on the certificate was indeed the date of mailing. See Appellee's Brief at 3, 5, 7. Under the circumstances, we do not view further inquiry into the sufficiency or integrity of the certificate as warranted