Michael Nichols v. Michael Bowersox

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

______________

Nos. 97-3639 & 97-3640
______________

Michael Nichols, *
*
Petitioner-Appellant, *
v. * Appeal from the United
States
* District Court for the
Western
Michael Bowersox, * District of Missouri
*
Respondent-Appellee. *
___________

Richard L. Crane, *
*
Petitioner-Appellant,*
v. * Appeal from the United
States
* District Court for the
Western
Dave Dormire, * District of Missouri
*
Respondent-Appellee. *
___________

Submitted: March 9, 1998

Filed: April 3, 1998
___________
 *
Before MCMILLIAN and FAGG, Circuit Judges, and BENNETT, District Judge.
___________

BENNETT, District Judge.

Missouri state inmates Michael Nichols and Richard Crane challenge
the dismissal of their petitions for writs of habeas corpus brought
pursuant to 28 U.S.C. § 2254. The district court, believing it was
constrained by this court’s decision in Allen v. Dowd, 964 F.2d 745 (8th
Cir.), cert. denied, 506 U.S. 902 (1992), dismissed the petitions as
untimely under 28 U.S.C. § 2244(d)(1). On appeal, we consider whether the
“prison mailbox rule”—deeming a pro se prisoner’s notice of appeal “filed”
at the time it is submitted to prison authorities for mailing to the
district court—applies to the filing of a petition for writ of habeas
corpus. We conclude that it does, and reverse and remand for proceedings
consistent with this opinion.

I. BACKGROUND
On September 15, 1993, Michael Nichols was convicted in the Circuit
Court of Jackson County, Missouri of one count of first degree murder, one
count of first degree assault, and two counts of armed criminal action.
He was sentenced to life in prison without the possibility of probation or
parole as well as three lesser concurrent terms of imprisonment. On
February 20, 1996, the Missouri Court of Appeals affirmed Nichols’
conviction and sentence.
On December 3, 1992, Richard Crane was convicted in the Circuit Court
of

*
The HONORABLE MARK W. BENNETT, United States District Judge for the
Northern District of Iowa, sitting by designation.
2
Jasper County, Missouri of one count of second degree burglary and one
count of stealing. Crane was sentenced to concurrent prison terms of
twenty years and one year respectively for these crimes. The Missouri
Court of Appeals affirmed Crane’s conviction and sentence on June 28, 1994.
After exhausting their state post-conviction remedies, Nichols and
Crane, both proceeding pro se, prepared petitions for writs of habeas
1
corpus, the “Great Writ” ,

1
Chief Justice Marshall was the first to refer to the writ of habeas corpus as “the
great writ” in Ex parte Bollman, 8 U.S. (4 Cranch) 75, 96 (1807). By the time Chief
Justice Marshall so described it, the writ of habeas corpus had already enjoyed several
centuries of recognition, dating back at least to the English common law of the
thirteenth century. See, e.g., Charles D. Forsythe, The Historical Origins of Broad
Federal Habeas Review Reconsidered, 70 NOTRE DAME L. REV. 1079, 1080 (1995)
(“Unfortunately, the writ’s arcane Latin phraseology obscures its historic purpose. A
writ of habeas corpus is a civil procedure, directed to a law enforcement authority to
contest ‘the legality of the detention of one in the custody of another.’ The writ is
deeply based in the English common law, dating back at least to the thirteenth
century.”) (citations omitted); Emanuel Margolis, Habeas Corpus: The No-Longer
Great Writ, 98 DICK. L. REV. 557, 563 (1994) (“The writ of habeas corpus is traceable
to the common law, well before the founding of this nation.”). Several types of habeas
corpus writs had developed at least by the end of the reign of Edward I in 1307, but an
early reference to such a writ can be traced back to Henry II’s Assize of Clarendon in
1166, which “‘made great changes in the administration of the criminal law’ and, in
part, ordered sheriffs to bring certain prisoners before the justices.” Id. at 1090 (citing
1 SIR FREDERICK POLLOCK & FREDERICK MAITLAND, THE HISTORY OF ENGLISH LAW
137 (2d ed. 1968). Although the writ of habeas corpus has a long history in the
common law, and, in this country, the common law has been used to determine its
scope, it was not until 1867 that Congress extended federal habeas jurisdiction to state
prisoners by statutory enactment. Id. at 1087-88; Margolis, The No-Longer Great
Writ, 98 DICK. L. REV. at 564. Although the American history of the Great Writ has
been rich, the grant of a writ of habeas corpus to a state prisoner is extraordinarily rare,
as it should be if our dual system of state and federal courts is to function with proper
respect for the state criminal adjudications. Nonetheless, part of the respect due our
criminal justice system cannot help but be the result of the power of courts to continue
constitutional review of convictions, even after direct appeals have run their course.
(continued...)
3
pursuant to 28 U.S.C. § 2254. Nichols and Crane signed their petitions on
April 20 and April 21, 1997, respectively. Although the record is silent
regarding the date the petitions were actually mailed, uncontradicted
evidence in the record reflects that Nichols and Crane submitted their
petitions to their respective prison mail systems on the date that the
petitions were signed. The clerk of the district court received and filed
Nichols’ petition on April 28, 1997. Crane’s petition was received and
filed by the clerk on April 29, 1997.
The respondents moved the district court to dismiss both petitions
on the ground that they were untimely filed. Specifically, the respondents
argued that pursuant to 28 U.S.C. § 2244(d)(1), Nichols and Crane were
2
required to file their habeas petitions on or before April 23, 1997.

1
(...continued)
See, e.g., 1 WILLIAM BLACKSTONE, COMMENTARIES 130-31 (1765) (“Of great
importance to the public is the preservation of this personal liberty: for if once it were
left in the power of any . . . magistrate to imprison arbitrarily whomever he or his
officers thought proper . . . there would soon be an end of all other rights and
immunities.”).
2
Section 2244(d) provides, in pertinent part, that:
(1) A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of—
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review; . . .
(2) The time during which a properly filed application for
State post-conviction or other collateral review with respect
to the pertinent judgment or claim is pending shall not be
counted toward any period of limitation under this
subsection.
28 U.S.C. § 2244(d).
4
 In considering the motions to dismiss, the district court first
observed that under the “prison mailbox rule” established in Houston v.
Lack, 487 U.S. 266 (1988), a notice of appeal from the denial of federal
habeas corpus relief was timely filed when a pro se inmate deposited the
notice to prison officials for mailing prior to the expiration of the
applicable filing deadline. The district court then considered this
court’s decision in Allen v. Dowd, 964 F.2d 745, 746 (8th Cir. 1992), and
concluded that in that case this court “refused to extend the prison
mailbox rule to the filing of habeas corpus petitions.” (App. at 48). The
district court noted that Allen was decided before the addition of the one
year time limitation in 28 U.S.C. § 2244(d)(1), but nevertheless
reluctantly concluded that it was constrained by Allen from extending the
mailbox rule to pro se petitions for habeas corpus relief. The court found
that Nichols’ and Crane’s petitions were filed after April 23, 1997, and
accordingly, dismissed both petitions as untimely under § 2244(d)(1).
The district court granted Nichols and Crane certificates of
appealability on the issue of “whether the prison mailbox rule announced
in Houston v. Lack, 487 U.S. 266 (1988), should now apply to the filing of
3
habeas corpus petitions.” Nichols and

3
As an initial matter, the respondents assert that the district court improvidently
granted the certificates of appealability because the dismissal for untimeliness did not
implicate a matter of constitutional dimension. Accordingly, respondents argue,
Nichols and Crane could not have “made a substantial showing of the denial of a
constitutional right” as required by 28 U.S.C. § 2253(c)(2). On this basis, the
respondents assert that this court lacks jurisdiction to consider the appeals. We hold
this argument to be without merit.
At the outset, we note this court’s earlier conclusion that a district court judge
possesses the authority to issue certificates of appealability under § 2253(c) and FED.
R. CIV. P. 22(b), Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997), so long as
the judge finds a substantial showing of the denial of a federal constitutional right .
Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997). A substantial showing is a showing
that issues are debatable among reasonable jurists, a court could resolve the issues
differently, or the issues deserve further proceedings. Cox, 133 F.3d at 569 (citing
Flieger v. Delo, 16 F.3d 878, 882-83 (8th Cir.), cert. denied, 513 U.S. 946 (1994).
(continued...)
5
Crane filed timely notices of appeal to this court, and the cases were
consolidated for disposition.

II. STANDARD OF REVIEW
Nichols and Crane contend that the dismissal of their petitions was
erroneous on two alternative grounds. First, they contend that the prison
mailbox rule announced in Houston v. Lack should be extended to a pro se
inmate’s filing of a federal habeas petition. Nichols and Crane assert
that such an extension is warranted by the newly enacted one-year period
of limitation for federal habeas petitions contained in 28 U.S.C.
§ 2244(d)(1). Alternatively, Nichols and Crane assert that

3
(...continued)
Here, the requisite “substantial showing” is clear. If, as Nichols and Crane contend,
the prison mailbox rule extends to a pro se prisoner’s filing of a petition for writ of
habeas corpus, the district court’s dismissal of the petitions on procedural grounds
foreclosed their constitutional right to petition for the writs. See U.S. CONST., art. I,
§ 9, cl.2. Moreover, as this court stated in Tiedeman, if a certificate of appealability
is regular on its face and not procedurally defective, the “appeal proceeds in this Court
in the ordinary course. If we believed that the issues were without substance, we
would simply summarily affirm the judgment, instead of taking the intermediate and
wholly unnecessary step of vacating the certificate of appealability.” Tiedeman, 122
F.3d at 522.
6
even if the prison mailbox rule does not apply, the doctrine of equitable
tolling should stall the running of the one-year limitation period because
“extraordinary circumstances” beyond their control prevented them from
filing their habeas petitions. We review the district court’s dismissal
of the petitions for habeas corpus relief de novo. United States v. Beck,
122 F.3d 676, 677 (8th Cir. 1997); Reese v. Delo, 94 F.3d 1177, 1181 (8th
Cir. 1996), cert. denied sub nom., Reese v. Bowersox, 117 S. Ct. 2421
(1997); United States v. Duke, 50 F.3d 571, 576 (8th Cir.), cert. denied,
116 S. Ct. 224 (1995).

III. LEGAL ANALYSIS
Section 2244(d) went into effect on April 24, 1996, when the
Antiterrorism and Effective Death Penalty Act (“AEDPA”) of 1996 was signed
into law. This subsection amends 28 U.S.C. § 2244 by imposing a one-year
time limitation following the conclusion of state court review for the
filing of § 2254 habeas petitions. The one-year limitation dramatically
reduced a state inmate’s window of opportunity to pursue habeas relief
because prior to its enactment, habeas petitions could be filed many years
4
after the conclusion of state post-conviction proceedings.

4
Of course this is not to say that the pursuit of habeas relief was utterly
unrestrained. Rule 9(a) of the Rules Governing Section 2254 Cases specifically
addressed the issue of “delayed petitions”:
A petition may be dismissed if it appears that the state of
which the respondent is an officer has been prejudiced in its
ability to respond to the petition by delay in its filing unless
the petitioner shows that it is based on grounds of which he
could not have had knowledge by the exercise of reasonable
diligence before the circumstances prejudicial to the state
occurred.
RULES GOVERNING SECTION 2254 CASES, R. 9(a).
7
 Nichols and Crane were convicted and sentenced prior to the enactment
of the AEDPA, and the parties—as well as the district court—have assumed
that pursuant to § 2244(d)(1), the deadline for these prisoners to file
their petitions was April 23, 1997. At oral argument, the respondents
challenged the district court’s calculation of the filing deadline. This
argument was not raised below, and we will not address it for the first
time on appeal. See Colonial Ins. Co. v. Spirco Envtl., Inc., ___ F.3d
___,___, 1998 WL 73076 *1 (8th Cir. Feb. 24, 1998); United States Dep’t of
Labor v. Rapid Robert’s Inc., 130 F.3d 345, 348 (8th Cir. 1997). As stated
above, Nichols’ petition was signed and submitted to the prison mail system
on April 21, 1997, and filed by the clerk on April 28, 1997. Crane’s
petition was signed and submitted on April 20, 1997, and filed nine days
later, on April 29. If, as Nichols and Crane contend, their petitions were
“filed” for purposes of § 2244(d)(1) on the date they were deposited into
the prison mail system, the petitions were timely filed.

A. Origin Of The Prison Mailbox Rule
We begin our inquiry with the United States Supreme Court’s decision
in Houston v. Lack, 487 U.S. 266 (1988). In that case, the Supreme Court
held that a pro se state inmate’s notice of appeal from the dismissal of
his habeas petition was filed at the moment he submitted the notice to
5
prison officials for mailing. Houston, 487 U.S. at 277. In adopting what
has come to be known as the “prison mailbox

5
Rule 4 of the Federal Rules of Appellate Procedure was amended to reflect the
decision in Houston v. Lack. See FED. R. APP. P. 4(c).
8
rule,” the Houston Court emphasized the peculiar obstacles facing pro se
prisoner litigants:
The situation of prisoners seeking to appeal
without the aid of counsel is unique. Such
prisoners cannot take the steps other litigants can
take to monitor the processing of their notices of
appeal and to ensure that the court clerk receives
and stamps their notices of appeal before the 30-
day deadline. Unlike other litigants, pro se
prisoners cannot personally travel to the
courthouse to see that the notice is stamped
“filed” or to establish the date on which the court
received the notice. Other litigants may choose to
entrust their appeals to the vagaries of the mail
and the clerk’s process for stamping incoming
papers, but only the pro se prisoner is forced to
do so by his situation. . . . Worse, the pro se
prisoner has no choice but to entrust the
forwarding of his notice of appeal to prison
authorities whom he cannot control or supervise and
who may have every incentive to delay.
Id. at 270-72.
Mindful that many lower courts had rejected general application of
the mailbox rule to determine when a notice of appeal was filed, the Court
explained that policy concerns associated with pro se prisoner filings
warranted application of the rule to the filing of these litigants’ notices
of appeal. The pro se prisoner’s lack of control is of particular concern.
As the Court emphasized, a pro se prisoner’s diligence in depositing his
notice of appeal to prison authorities in advance of the filing deadline
provides no assurance that the document will ultimately be “filed” on time.
Id. at

9
271. Moreover, as a result of confinement, the pro se inmate has virtually
no means by which to track the whereabouts of his notice:
Unskilled in law, unaided by counsel, and unable to
leave the prison, [the prisoner’s] control over the
processing of his notice necessarily ceases as soon
as he hands it over to the only public officials to
whom he has access—the prison authorities—and the
only information he will likely have is the date he
delivered the notice to those prison authorities
and the date ultimately stamped on his notice.
Id.
The Court went on to distinguish the pro se inmate from the average
civil litigant who chooses to entrust the mail system to promptly deliver
a notice of appeal:
The pro se prisoner does not anonymously drop his
notice of appeal in a public mailbox--he hands it
over to prison authorities who have well-developed
procedures for recording the date and time at which
they receive papers for mailing and who can readily
dispute a prisoner’s assertions that he delivered
the paper on a different date.
Id. at 275. In this sense, the general concern that application of a
mailbox rule would spawn disputes and uncertainty as to when a litigant
mailed the notice is alleviated in the case of a pro se inmate because
prison authorities—via the prison mail log—will have access to the
pertinent information. Id. In this context, the prison mailbox rule is
a “bright-line rule, not an uncertain one.” Id.

B. Application Of The Rule Since Houston
The respondents assert that the mailbox rule announced in Houston is
inapplicable to the filing of petitions for habeas corpus relief because
the Court only endorsed the rule’s applicability to the filing of a notice
of appeal. We understand

10
the gravamen of this argument to be that the prison mailbox rule should not
be extended to other pro se filings. This argument is unavailing. As this
court observed in Miller v. Benson, 51 F.3d 166, 169, n.2 (8th Cir. 1995),
other circuits have extended the rule in Houston to pro se prisoner filings
outside the habeas context. Miller, 51 F.3d at 169, n.2 (citing United
States v. Moore, 24 F.3d 624 (4th Cir. 1994) (extending mailbox rule to
notice of appeal from a criminal case); Dory v. Ryan, 999 F.2d 679 (2d Cir.
1993) (applying rule to § 1983 complaint); Thompson v. Raspberry, 993 F.2d
513, 515 (5th Cir. 1993) (per curiam) (extending rule to the filing of
objections to magistrate judge’s report and recommendation); Garvey v.
Vaughn, 993 F.2d 776, 783 (11th Cir. 1993) (applying rule to § 1983
complaints as well as complaints brought pursuant to the Federal Tort Claim
Act); Faile v. Upjohn Co., 988 F.2d 985, 988-89 (9th Cir. 1993) (applying
rule to all pro se prisoner filings); Simmons v. Ghent, 970 F.2d 392, 393
(7th Cir. 1992) (extending rule to Rule 59(e) motions); Lewis v. Richmond
City Police Dep’t, 947 F.2d 733, 735-36 (4th Cir. 1991) (per curiam)
(applying rule to civil complaints); Dunn v. White, 880 F.2d 1188, 1190
(10th Cir. 1989), cert. denied, 493 U.S. 1059 (1990) (applying rule to the
filing of objections to magistrate judge’s report and recommendation)); see
also, McGore v. Wrigglesworth, 114 F.3d 601, 605 (6th Cir. 1997) (applying
rule to a motion for an extension of time to correct deficiencies
concerning in forma pauperis status); Smith v. Evans, 853 F.2d 155 (3d Cir.
1988) (extending rule to the filing of a motion for reconsideration
pursuant to FED. R. CIV. P. 59(e)).
Our circuit has also extended the prison mailbox rule to pro se
filings outside the habeas context. In Hamm v. Moore, 984 F.2d 890, 892
(8th Cir. 1992), this court revisited the policies set forth in Houston,
and concluded that the prison mailbox rule should be extended to a pro se
filing of a notice of appeal in a § 1983 action. Hamm,

11
984 F.2d at 892. Three years later, this court again considered the
propriety of extending the prison mailbox rule—this time in the context of
a pro se prisoner’s motion for reconsideration pursuant to FED. R. CIV. P.
59(e). United States v. Duke, 50 F.3d 571, 575 (8th Cir. 1995). In Duke
this court stated:
We believe that the rationale of Houston and the
new Rule 4(c) applies with equal force to a motion
which, under Rule 4(a)(4), tolls the time for the
filing of a notice of appeal. . . Thus, we hold
that Duke’s motion for reconsideration should be
deemed timely served if it was delivered to prison
authorities for mailing within the ten-day time
period of FED. R. CIV. P. 59(e) and FED. R. APP. P.
4(a)(4)(F).
Id. Compare Burgs v. Johnson County, Iowa, 79 F.3d 701, 702 (8th Cir. 1996)
(concluding that Burgs was not entitled to the benefit of Houston because
he was represented by counsel and thus in the same position as other
litigants who rely on their attorneys to file a timely notice of appeal).

C. Application Of The Rule To Habeas Petitions
The respondents contend that even if the prison mailbox rule is
properly applied to certain pro se inmate filings, the rules governing
habeas procedure prohibit its application to the filing of habeas
petitions. In support of this contention, the respondents direct our
attention to Rule 3 of the Rules Governing Section 2254 Cases. Rule 3(a)
provides that a petition for writ of habeas corpus relief “shall be filed
in the office of the clerk of the district court.” RULES GOVERNING SECTION
2254 CASES, R.3(a). Rule 3(b) sets forth the duties of the clerk of court
pertaining to habeas petitions, and provides, in pertinent part, as
follows:

12
 (b) Filing and service. Upon receipt of the
petition and the filing fee, or an order granting
leave to the petitioner to proceed in forma
pauperis, and having ascertained that the petition
appears on its face to comply with rules 2 and 3,
the clerk of court shall file the petition. . . .
RULES GOVERNING SECTION 2254 CASES, R. 3(b). In the respondents’ view, Rule 3
plainly defines the moment at which a habeas petition is filed and
therefore, by implication, prohibits application of the prison mailbox
rule.
While we agree that Rule 3(a) prescribes the procedures by which a
habeas litigant is to file his or her petition, we reject the assertion
that Rule 3 defines the moment when a habeas petition is “filed” for
purposes of the one-year time limitation set forth in § 2244(d)(1). In our
view such a reading begs the question presented to us today, and ignores
the important policy concerns raised by the Court in Houston. Obviously,
incarcerated pro se litigants are unable to journey to the district court
clerk’s office to file their habeas petitions. Instead, they must submit
their petitions to prison authorities for forwarding to the clerk. We hold
that there is no meaningful distinction between the situation of a pro se
inmate seeking to file a notice of appeal from the dismissal of a habeas
petition and that of a pro se inmate seeking to file a habeas petition in
the first instance—both must rely upon the diligence of prison authorities
to forward their documents for filing. The respondents assert that the
Rules Governing Section 2254 Cases contemplate the situation of an
incarcerated litigant and by omission, reject the necessity of the prison
mailbox rule. Respondents’ observation is only partially correct because
although the Rules Governing Section 2254 Cases must, by their nature,
contemplate the situation of an incarcerated litigant, they do not directly
address the situation of an incarcerated pro

13
se litigant. It is this combination of obstacles that gave rise to the
policy concerns expressed in Houston and that concern us today.
Respondents argue that even if the prison mailbox rule is applied to
the petitioners’ filings, their petitions were still untimely because they
were not submitted with the proper in forma pauperis paperwork as required
by Rule 3(b). We disagree. A standing order of the district court
specifically grants incarcerated petitioners with provisional leave to
proceed in forma pauperis at the time their petitions are received by the
court clerk and we see no reason to deny Nichols and Crane the benefit of
this local rule. As the district court observed, the petitions were
considered filed on the date they were received by the clerk despite the
absence of the in forma pauperis documents. If the prison mailbox rule
applies, the petitions would have been sufficiently complete under the
district court’s standing order on the date they were submitted to prison
authorities for mailing. Although the respondents’ argument on this point
is nebulous at best, to the extent they invite us to consider the propriety
of the standing order, we decline the invitation. The respondents did not
challenge the district court’s standing order below, and we will not
entertain such a challenge for the first time on appeal. See Colonial Ins.
Co., ___ F.3d at ___, 1998 WL 73076 at *1 (8th Cir. Feb. 24, 1998).
The respondents also emphasize that unlike FED. R. CIV. P. 4(c), Rule
3 has not been amended to incorporate the prison mailbox rule. One
interpretation of this is, as respondents suggest, that the prison mailbox
rule was not intended to apply to the filing of habeas petitions. An
equally plausible interpretation is that no amendment to the Rules
Governing Section 2254 Cases was necessary prior to the enactment of the
AEDPA because no statutory time limitations were imposed upon the filing
of habeas petitions. Nothing in Houston indicates that the prison mailbox
rule is strictly

14
reserved for notices of appeal, and we decline to engage in inferential
guesswork to reach such a conclusion.
Finally, respondents contend that in Allen v. Dowd, 964 F.2d 745 (8th
Cir.), cert. denied, 506 U.S. 902 (1992), this court rejected application
of the prison mailbox rule to the filing of habeas petitions. In Allen,
this court considered the plight of a petitioner whose § 2254 habeas
petition was dismissed on the ground that he did not satisfy the statute’s
“in custody” requirement. Allen, 964 F.2d at 745. The district court
concluded that Allen’s petition was not filed until eight days after he
completed the challenged state prison sentence. Allen had completed his
first sentence and was serving his second consecutive prison sentence. His
first conviction and sentence were the subject of his habeas petition.
Accordingly, Allen was no longer “in custody”—for purposes of the relevant
conviction and sentence—on the date his petition was filed. On appeal,
Allen argued that his earlier conviction affected the sentence he was
presently serving to the extent that it delayed his release date. Relying
upon the rule set forth in Maleng v. Cook, 490 U.S. 488 (1989) (per
curiam), Allen asserted that he was entitled to challenge the sentence for
which he was currently “in custody” on the ground that the allegedly
invalid prior conviction, on which the sentence had expired, enhanced his
current sentence. Allen, 964 F.2d at 746 (citing Maleng, 490 U.S. at 493-
94).
This court rejected Allen’s contention, finding that his reliance on
Maleng was misplaced:
[Allen’s] argument overlooks the fact that nowhere
in his petition does he challenge his later
conviction. Allen expressly restricts himself to
challenging the 1982 conviction for receiving
stolen property. In Taylor v. Armontrout, 877 F.2d
726 (9th Cir. 1989) (per curiam), we

15
affirmed a dismissal where the petitioner had served the sentence
challenged in his habeas petition and had failed to assert in his petition
an attack against a current sentence, even though he argued on appeal that
the earlier conviction resulted in an enhancement of his later sentence.

Id. Although Allen was not allowed to proceed under Maleng, this court
observed that he was entitled to file a new petition properly attacking the
conviction for which he was presently incarcerated. Id.
Allen also argued that he deposited his petition for mailing with
prison authorities approximately five days before his release and
therefore, under the rule espoused in Houston, the district court should
have deemed his petition filed on the date of mailing. The Allen court
rejected this argument stating:
Allen’s argument fails, for [Houston] is limited to
notices of appeal which have a 30-day deadline
under 28 U.S.C.A. § 2107(a) and FED. R. CIV. P.
4(a)(1). This case does not concern a notice of
appeal or other filing with a 30-day deadline.
Moreover, this court has recently held that filing
does not occur in a habeas case until the
petitioner has either paid the filing fee or been
granted leave to proceed in forma pauperis. Weaver
v. Pung, 925 F.2d 1097, 1099 (8th Cir.), cert.
denied, 502 U.S. 828 (1991). Allen was not granted
leave to proceed in forma pauperis until June 13,
1990. We thus hold that the district court did not
err in holding that Allen was not “in custody” when
his petition was filed.
Id. (emphasis added) (some internal citations omitted). Seizing upon this
language, respondents assert that this court has already determined that
the prison mailbox rule does not apply to petitions for habeas relief.
We are, of course, bound by Eighth Circuit precedent, and as this
court has repeatedly observed, one panel may not overrule another panel’s
decision. See, e.g.,

16
United States v. Reynolds, 116 F.3d 328, 329 (8th Cir. 1997); United States
v. Prior, 107 F.3d 654, 660 (8th Cir. 1997); United States v. Dittrich, 100
F.3d 84, 87 (8th Cir. 1996), cert. denied, 117 S. Ct. 1454 (1997); Jenkins
v. State of Missouri, 73 F.3d 201, 205 (8th Cir. 1996). Only the court
sitting en banc may effectuate such a change. United States v. Bass, 121
F.3d 1218, 1222 (8th Cir. 1997); Smith v. Copeland, 87 F.3d 265, 269 (8th
Cir. 1996). However, we are equally mindful that we are not bound by
6
another panel’s dicta. Wilson v. Zoellner, 114 F.3d 713, 721 n.4 (8th
Cir. 1997); see also, Boyer v. County of Washington, 971 F.2d 100, 102 (8th
Cir. 1992) (per curiam) (noting that statement in prior case “was not
necessary to decide the issue in the case and is not binding authority
[here]”), cert. denied sub nom. Boyer v. DeClue, 508 U.S. 974 (1993); John
Morrell & Co. v. Local Union 304A, 913 F.2d 544, 550 (8th Cir. 1990)
(observing that panel need not follow prior panel’s dicta), cert. denied,
500 U.S. 905 (1991).
We have scrutinized the holding in Allen, and conclude that although
it may be a close question, the Allen court’s observations regarding the
inapplicability of the prison mailbox rule are dicta because they were “not
necessary to decide the issue in the case.” See Boyer, 971 F.2d at 102.
The holding in Allen was premised on the fact that Allen’s habeas petition
failed to make any reference to the conviction for which

6
Dicta is a common abbreviation for obiter dicta, and is defined as “words of an
opinion that are entirely unnecessary for the decision of the case.” BLACK’S LAW
DICTIONARY 1072 (6th ed. 1990). Examples of dicta include a “remark made, or
opinion expressed, by a judge, in his decision upon a cause, ‘by the way,’ that is,
incidentally or collaterally, and not directly upon the question before him, or upon a
point not necessarily involved in the determination of the cause, or introduced by way
of illustration, or analogy or argument.” Id., see also King v. Erickson, 89 F.3d 1575,
1582 (Fed. Cir. 1996), rev’d on other grounds sub nom. LaChance v. Erickson, 118
S. Ct. 753 (quoting same).
17
he was presently incarcerated. For this reason, Allen was not “in custody”
for purposes of challenging the prior conviction or its effect on his
present sentence. Even if Allen’s petition had been deemed “filed” on the
date he submitted it to prison authorities for mailing, Allen would have
failed, as a practical matter, to meet the “in custody” requirement for the
challenged conviction and sentence because that sentence expired five days
after he mailed the petition. Without referencing his second sentence,
Allen confined himself to challenging a sentence that was completed before
any habeas relief could be granted. See Allen, 964 F.2d at 746.
7
Consequently, we are not bound by the panel decision in Allen. See
Wislon, 114 F.3d at 721 n.4; Boyer, 971 F.2d at 102.
Although we have concluded that Allen’s reference to the prison
mailbox rule was not essential to the holding in that case, we note that
Allen was decided well before the enactment of the filing deadline now
imposed on habeas petitions. This is particularly significant because at
the time Allen was decided, pro se prisoners were not in jeopardy of being
foreclosed from pursuing habeas relief if their petitions were not received
by a certain date. Put simply, application of the prison mailbox rule was
simply unnecessary. The advent of section 2244(d)(1) dramatically changed
this. Under the present statutory landscape, pro se prisoners must heavily
rely upon

7
We are puzzled by the dissent’s assertion that we have engaged in “lip service”
and “transparent rule-making,” have “by-passed circuit precedent, the en banc court,
and Congress,” and have made an “end run around Allen.” To the contrary, we
acknowledge that if the targeted passage in Allen is not obiter dictum, only the court
sitting en banc has the power to overturn Allen and arrive at the conclusion we reach
today. Furthermore, while the dissent never addresses the threshold issue of whether
the targeted passage in Allen is or is not dictum, we have explained our reasons for
concluding that Allen’s observations regarding the prison mailbox rule were merely
incidental to its holding, and therefore not binding upon this panel.
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the diligence of prison authorities to mail their habeas petitions in a
timely fashion.
We are persuaded that the important concerns expressed by the Supreme
Court in Houston apply with equal force to a pro se prisoner’s filing of
a petition for writ of habeas corpus. As the Fourth Circuit Court of
Appeals stated in Lewis v. Richmond City Police Dep’t, 947 F.2d 733 (4th
Cir. 1991):
Fundamentally, the rule in Houston is a rule of
equal treatment; it seeks to ensure that imprisoned
litigants are not disadvantaged by delays which
other litigants might readily overcome. It sets
forth a bright line rule—that filing occurs when
the petitioner delivers his pleading to prison
authorities for forwarding to the court clerk.

Lewis, 947 F.2d at 735 (extending prison mailbox rule to a § 1983
complaint). In our view, the proper focus is upon the pro se inmate’s
lack of control over his petition once he has deposited it with prison
authorities for mailing to the clerk of court. In the context of a habeas
petition controlled by the time restraints contained in 28 U.S.C.
§ 2244(d)(1), the pro se inmate’s lack of control is particularly
compelling because as with a notice of appeal, if the inmate’s documents
are not timely filed, the inmate is foreclosed from pursuing further
relief. As explained above, this conclusion is not contrary to this
court’s ruling in Allen v. Dowd because at the time that case was
considered, habeas petitioners were constrained only by the prejudicial
concerns addressed in Rule 9(a) of the Rules Governing Section 2254 Cases.
See also Miller v. Benson, 51 F.3d 166, 169 n.2 (8th Cir. 1995)
(referencing the policy arguments set forth in Houston and noting “[a] good
argument can be made for extending the rule in Houston v. Lack to filings
other than notices of appeal.”).
We observe that at least one of our sister circuits has expressly
extended the prison mailbox rule to the filing of habeas petitions. Burns
v. Morton, 134 F.3d 109,

19
 8
113 (3d Cir. 1998). In that case, the petitioner (Burns) submitted his
petition for a writ of habeas corpus under 28 U.S.C. § 2254 to prison
authorities one day before the expiration of the filing deadline. Id. at
110. The clerk of court did not receive Burn’s petition until five days
after the deadline. Id. The district court declined to apply the prison
mailbox rule, and subsequently dismissed the petition as untimely.
The Court of Appeals for the Third Circuit reversed, holding that a
pro se inmate’s habeas petition is deemed filed at the moment the inmate
submits it to prison authorities for mailing to the district court. Id.
at 113. In reaching this conclusion, the Burns court emphasized the
obstacles—particularly the lack of control—confronting pro se inmates:
Many have expressed their concern with the pro se
prisoner’s lack of control over the filing of
documents, especially as compared to the control
other litigants maintain, e.g. Faile [v. UpJohn
Co., 988 F.2d 985, 988 (9th Cir. 1993)]. We share
their concern . . . [The Supreme Court’s holding in
Houston] was founded on such concerns, and are
present with equal force where a pro se prisoner
places his habeas petition in the hands of prison
authorities for mailing. Once he has done so, he
is completely unable to ensure that the district
court will receive his petition promptly; he
remains entirely at the mercy of prison officials.
Id.
Two other cases, also cited in Burns, warrant mentioning. Although
the Sixth Circuit Court of Appeals has yet to address the precise issue
raised here, it has

8
The respondents cited the district court opinion, Burns v. Morton, 970 F. Supp.
373 (D.N.J. 1997), in support of their contention that the prison mailbox rule is
inapplicable to habeas petitions. We note that the district court’s decision was reversed
after the submission of briefs in this consolidated appeal.
20
applied the prison mailbox rule to a motion made pursuant to § 2244(b)(3)
for authorization to file a second or successive motion under 28 U.S.C.
§ 2255. In re Sims, 111 F.3d 45, 47 (6th Cir. 1997) (stating that “for
purposes of the one-year limitations periods established by § 2244(d) and
§ 2255, on the date that the § 2244(b)(3) motion is given to prison
authorities for mailing and the prisoner has satisfied the verification
requirements of FED. R. APP. P. 25(a)(2)(C).”); accord United States v.
Dorsey, ___F. Supp.___,___, 1998 WL 5947, *3-4 (D. Md. Jan. 6, 1998)
(applying prison mailbox rule to § 2255 motion). Similarly, in Peterson
v. Demskie, 107 F.3d 92, 93 (2d Cir. 1997), the court appeared by
implication to presume that the timeliness of a pro se prisoner’s filing
would be determined from the date the prisoner submitted the document to
prison authorities for mailing. See Peterson, 107 F.3d at 93.
Aside from Burns v. Morton, 970 F. Supp. 373 (D.N.J. 1997), which has
subsequently been reversed, the court has located no published decisions
rejecting application of the prison mailbox rule to the filing of a habeas
petition. In United States ex rel. Barnes v. Gilmore, ___ F. Supp. ___,
___, 1997 WL 797751 (N.D. Ill. Dec. 29, 1997), the district court, in an
order written by Judge Shadur, considered the applicability of the prison
mailbox rule to a § 2254 petition and concluded that the rule should be
applied to habeas cases in the district court as well as in the court of
appeals. Judge Shadur discussed at length the unreported decision in
United States ex rel. Banks v. Barnett, 1997 WL 786666 (N.D. Ill. Dec. 15,
1997), and concluded that the Barnett court’s refusal to apply the prison
mailbox rule to § 2254 petitions was a result of that court’s failure to
“follow Houston to its logical end.” Gilmore, ___ F. Supp. at ___, 1997
WL 797751 *4 (N.D. Ill. Dec. 29, 1997). Judge Shadur observed, inter alia,
that § 2244(d)(1)’s one-year filing deadline presented no

21
obstacle to the application of the prison mailbox rule:
The principal contention [for not applying the
prison mailbox rule to § 2254 petitions because the
filing deadline is one year as opposed to 30 days]
that a prisoner assertedly doesn’t have much need
for the benefit of the mailbox rule . . . ignores
the basic nature of every statute of limitations as
a bright-line rule on which a litigant is entitled
to rely: Nothing requires an Illinois personal
injury plaintiff (for example) to enter the
courthouse before the second anniversary of the
tortious event that harmed him or her, although
even one day beyond that is as fatal on limitations
grounds as a ten-year delay in bringing suit.
Id. Emphasizing the policy concerns relevant to a pro se prisoner’s
situation, the Gilmore court concluded that the prison mailbox rule was
equally applicable to petitions for habeas relief. Id.; accord Parker v.
Bowersox, 975 F. Supp. 1251, 1253 (W.D. Mo. 1997) (applying prison mailbox
rule to petition for habeas relief); Hughes v. Irwin, 967 F. Supp. 775, 778
(E.D.N.Y. 1997) (observing that pro se inmate’s habeas petition was deemed
filed when he delivered it to prison officials).

IV. CONCLUSION
We are persuaded that the one-year filing deadline contained in 28
U.S.C. § 2244(d)(1) has brought the concerns expressed in Houston to bear
upon a pro se inmate attempting to file a petition for habeas corpus
relief. We therefore hold that a pro se prisoner’s petition for writ of
habeas corpus is deemed filed at the moment the prisoner submits it to
prison authorities for mailing to the clerk of court. There is
uncontradicted evidence in the record that the petitioners submitted their
habeas petitions to prison authorities days before the April 23, 1997
filing deadline.

22
 9
Accordingly, we hold that the petitions were timely filed. The
decision of the district court is reversed, and the causes are remanded for
further proceedings consistent with this opinion.

FAGG, Circuit Judge, dissenting.

After my colleagues give lip service to our well-established rule "that one panel may not overrule another
panel's decision," they overrule the panel's decision in Allen v. Dowd, 964 F.2d 745 (8th Cir. 1992), by
extending the prison mailbox rule announced in Houston v. Lack, 487 U.S. 266, 276 (1988), to habeas petitions
filed by pro se prison inmates. Contrary to my colleagues view, until the Supreme Court or our en banc court
holds otherwise, see Patterson v. Tenet Healthcare, Inc., 113 F.3d 832, 838 (8th Cir. 1997); Smith v. Copeland,
87 F.3d 265, 269 (8th Cir. 1996), Allen makes clear that in this circuit the prison mailbox rule "is limited to
notices of appeal." Allen, 964 F.2d at 746.

Additionally, my colleagues' transparent rule-making end run around Allen is contrary to our decision
in Weaver v. Pung, 925 F.2d 1097, 1099 (8th Cir. 1991), (unlike the prison mail room serving as the clerk of
court for the filing of a notice of appeal, a filing does not occur in a habeas case until the clerk receives the
petition and the filing fee or an order granting leave to proceed in forma pauperis). I believe my colleagues have
also trespassed on Congress's turf by effectively altering Rule 3(b) of the Rules Governing Section 2254 Cases
in the United States District Courts which governs the filing of habeas corpus petitions. See id. Unlike
Congress's amendment to Federal Rule of Appellate Procedure 4(c) to reflect the decision in Houston v. Lack,

9
In light of our holding and conclusion that the petitions were timely filed, we need
not address the issue of whether the doctrine of equitable tolling applies to the time
limitation set forth in 28 U.S.C. § 2244(d)(1). We express no opinion on this issue.
23
Congress has neither rewritten the filing requirements for habeas petitions nor incorporated the prison mailbox
rule in Rule 3(b).

All in all, my colleagues have bypassed circuit precedent, the en banc court, and Congress. Without
doubt, the courts of appeals' decisions around the country show that good arguments can be made "for extending
the rule in Houston v. Lack to filings other than notices of appeal," see Miller v. Benson, 51 F.3d 166, 169 n.2
(8th Cir. 1995), but in this circuit, the extension of the prison mailbox rule to pro se habeas filings by state
prisoners is within the domain of the en banc court, not this panel. I thus decline to join the panel's opinion. For
my part, I would follow Allen, reject Nichols's and Crane's habeas petitions, and request en banc review.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT

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