United States Court of Appeals
For the First Circuit
No. 02-2300
SANTOS DE AZA-PAEZ,
Petitioner, Appellant,
v.
UNITED STATES,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Boudin, Chief Judge,
Lynch and Howard, Circuit Judges.
Santos De Aza-Paez on brief pro se.
H.S. Garcia, United States Attorney, Sonia I. Torres,
Assistant United States Attorney, and Thomas F. Klumper, Assistant
United States Attorney, on brief for appellee.
September 15, 2003
Per Curiam. Defendant-appellant Santos de Aza-Paez (Santos)
appeals from the denial of his petition pursuant to 28 U.S.C. §
2255. The district court denied the petition as untimely. We
vacate and remand for the following reasons.
The undisputed facts are that Santos directed the president of
a paralegal service to file his habeas petition, which arrived
within the one-year deadline following the denial of his petition
for certiorari. The petition was unsigned and accompanied by a
memo from the paralegal service stating that Santos had requested
that the agency forward his petition, the circumstances preventing
Santos from sending the petition, and an averment that a signed
petition would follow. The district court returned the petition
to the paralegal service with notification that it was unsigned.
Upon completion of his transfer between prisons, Santos filed the
same petition and signed it. However, the filing date for this
signed petition was one month after the one-year deadline. The
district court determined that this petition was untimely.
Title 28 U.S.C. § 1654 provides that, in all courts of the
United States, "the parties may plead and conduct their own cases
personally or by counsel. . . ." In addition, Rule 11(a) of the
Federal Rules of Civil Procedure requires that all pleadings and
motions be signed by the party or by the party's attorney.
However, Rule 11(a) provides that an unsigned paper will not be
stricken for lack of signature if it is corrected promptly.
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Admittedly, until quite recently this court like a number of
others took the view that an unsigned document such as a notice of
appeal was a legal nullity, Rivera v. Riley, 209 F.3d 24, 27 (1st
Cir. 2000), and the district court's disposition accorded with that
view. However, recent case law has viewed lack of signature as a
technical error. See e.g., Becker v. Montgomery, 532 U.S. 757, 768
(2001) (omission of signature on timely filed notice of appeal is
a curable error which does not constitute a jurisdictional bar to
pursuit of appeal); Casanova v. DuBois, 289 F.3d 142, 146 (1st Cir.
2002) (omission of co-plaintiffs' signatures on notice of appeal is
curable in light of Becker and the court's obligation to read pro
se complaints generously).
In the instant case, the timely habeas petition was not signed
by a pro se plaintiff or his attorney. However, there was no doubt
about who was filing or what judgment was attacked. Furthermore,
the initial filing, together with the signed petition, demonstrate
the assent of Santos to the petition. As a result, the signed copy
of the same petition, received a month after the deadline for a
habeas filing had passed, cured the timely, but unsigned petition.
For these reasons, we conclude that Santos's petition pursuant
to 28 U.S.C. § 2255 is timely. We therefore remand to the district
court for consideration of the underlying claims in Santos's §2255
petition.
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Reversed and remanded.
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