Case: 08-11009 Document: 00511630003 Page: 1 Date Filed: 10/12/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 12, 2011
No. 08-11009 Lyle W. Cayce
Clerk
CLIFFORD MEDLEY,
Petitioner - Appellant
v.
RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent - Appellee
Appeal from the United States District Court
for the Northern District of Texas
Before JOLLY, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:
The petition for panel rehearing is GRANTED. We withdraw our prior
opinion, Medley v. Thaler, 400 F. App’x 965 (5th Cir. 2010) (per curiam), and
substitute the following.
The petitioner, Clifford Scott Medley, appeals the dismissal of his
habeas petition as untimely filed under the Antiterrorism and Effective
Death Penalty Act (AEDPA), see 28 U.S.C. § 2244(d) (establishing a one-year
statute of limitations for filing federal habeas petitions). He argues that we
should treat his petition as having been timely filed because his prior
unsuccessful effort to mail a habeas petition through his prison mail room,
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prior to the expiration of the one-year statute of limitations, entitles him to
the benefit of the mailbox rule or equitable tolling of the statute of
limitations. In our prior panel opinion, we concluded that Medley was
entitled to neither. Medley, 400 F. App’x at 965. We concluded that Medley
was not entitled to the benefit of the mailbox rule, because his petition was
returned to him by prison staff after he failed to comply with a reasonable
prison mail regulation. Id. at 968-70.
Medley filed a petition for panel rehearing, explaining that after he
filed his reply brief, he learned that the purported mail regulation does not
actually exist. In his response, the respondent, Rick Thaler, the Director of
the Texas Department of Criminal Justice, Correctional Institutions Division,
concedes the same. Thus, we conclude that Medley attempted to mail his
petition in a manner consistent with the mail regulations, and that he was
prevented from doing so because prison mail room officials wrongfully
returned it for failure to comply with a nonexistent prison mail regulation.
Accordingly, we agree that Medley should have been afforded the benefit of
the mailbox rule and that his petition should have been considered timely
filed.1
We therefore REVERSE the dismissal of Medley’s petition and
REMAND to the district court for further proceedings consistent with this
opinion.
BACKGROUND
In March 2002, Medley was convicted of murder and sentenced to forty
years imprisonment. On appeal, his conviction was affirmed, and, on
November 7, 2005, the Supreme Court denied Medley’s petition for certiorari.
1
Because we conclude that Medley’s petition was timely filed, we need not and thus do
not consider his argument that under the circumstances, he was entitled to equitable tolling
of the statute of limitations.
2
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Medley v. Texas, 546 U.S. 1002 (2005). For the purposes of AEDPA, this was
the date on which Medley’s conviction became final. See Giesberg v. Cockrell,
288 F.3d 268, 271 (5th Cir. 2002). Thus, absent tolling, Medley had until
November 7, 2006, to file a federal habeas petition. No statutory tolling
applied, because Medley did not file a state habeas petition or any other form
of collateral attack on his conviction until after the statute of limitations had
already expired. See 28 U.S.C. § 2244(d)(2). His instant federal petition,
pursuant to 28 U.S.C. § 2254, was mailed by a third party, Medley’s mother,
from outside the prison system and not filed until March 21, 2007. The
district court concluded that it was filed outside of AEDPA’s one-year statute
of limitations and dismissed the petition.
Medley contended below, and argues on appeal, that because he
previously submitted his petition to the prison mail room on October 31, 2006,
his petition should be considered timely filed pursuant to the mailbox rule.
As we explained in our original panel opinion, “[p]ro se prisoners’ filings are
governed by the mailbox rule. Thus, they are deemed ‘filed as soon as the
pleadings have been deposited into the prison mail system.’ Spotville v. Cain,
149 F.3d 374, 376 (5th Cir. 1998) (citing Houston v. Lack, [487 U.S. 266
(1988)] and Cooper v. Brookshire, 70 F.3d 377, 379 (5th Cir. 1995)).” Medley,
400 F. App’x at 968; see also Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir.
1999) (“Under the ‘mailbox rule,’ a prisoner’s federal habeas corpus petition is
deemed filed when he delivers the petition to prison officials for mailing to the
district court.”).
Medley explained that when he submitted his petition to the prison
mail room on October 31, 2006, he concurrently requested that the petition be
held pending the deduction of a $5 filing fee from his prison account, so that
the fee could be sent with the petition to the district court. The petition was
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then returned to him on November 4, 2006, with an explanation that the mail
room was not permitted to hold the petition pending receipt of the filing fee.
Medley supported his account of these events with signed statements in
his brief, as well as two exhibits, which he introduced into the record. The
first exhibit, Exhibit A, consists of two pages. The first page is a form, which
appears to have been attached by Medley to the materials he initially sent to
the prison mail room on October 31. On that form, Medley wrote,
Madam:
Enclosed in the addressed, stamped envelope are
documents initiating federal habeas corpus action which require
accompaniment of $5.00 filing fee. Also enclosed are two inmate
withdrawal slips.
Please process the withdrawal, enclose the $5.00 check with
the documents and mail them to the Court using the envelope
provided.
Thank you!
The second page of Exhibit A, dated October 30, 2006, appears to be
associated with the first page, as a cover sheet. It is entitled “Inmate Request
to Official” and is addressed to Nancy Jowers, the mail room supervisor for
the Clements unit, where Medley was housed. Exhibit B, also dated October
30, 2006, appears to be the accompanying “Inmate Request for Withdrawal.”
In it, Medley requests that a $5 withdrawal be made from his prison account
and mailed to the “USDISTRICTCOURT.”
Exhibit A also indicates that Medley’s submission was rejected by
prison staff. The undated “DISPOSITION” of the form in Exhibit A states,
“Mail may not be submitted with withdrawal requests. After Unit approval,
withdrawals are forwarded to Huntsville for further processing.”
The next two exhibits indicate that after his initial attempt was
rejected, Medley continued to inquire about the proper procedure for mailing
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his petition and filing fee. Exhibit C consists of a form, on which Medley
wrote,
Sir,
Filing Federal Habeas Corpus (28 U.S.C. § 2254) requires
provision of $5.00 filing fee with the Petition. Please provide the
procedure (and time-frame) for taking the $5.00 from my prison
account and submitting it with my Petition (to the federal court).
Note: The procedure for releasing money to outside parties
(submitting withdraw[al] slip for warden’s approval, then to
Huntsville, then Huntsville sending a check directly to the party
(anywhere from 3 to 6 weeks later)) is inadequate to satisfy the
Court’s requirements of submitting the filing fee with the Petition
in a timely fashion, utilizing the “mailbox” tolling rule/sworn
declaration.
This request indicates that Medley was, as he explained to the district court
and this court, reluctant to resubmit his habeas petition to the mail room and
allow it to be mailed separate from his filing fee because he thought that
doing so would not be in compliance with Rule 3(a) of the Rules Governing
Section 2254 Cases in the District Courts. That rule states that “[a]n original
and two copies of the petition must be filed with the clerk and must be
accompanied by: (1) the applicable filing fee, or (2) a motion for leave to
proceed in forma pauperis . . . .”
Although the date of Medley’s request in Exhibit C is unclear, the
disposition of his request is dated January 23, 2007, and states, “[Y]ou need
to make out 2 withdrawals to the court provide a stamped addressed envelope
to the court or you can have someone from the freeworld to pay the fee. We
have no control over how long the check takes to get there.”
Finally, Exhibit D consists of another form, on which Medley wrote,
I intend to file a Petition for Writ of Habeas Corpus in federal
court which requires a $5.00 filing fee. May I submit my petition
(100 pgs) with my withdrawal request so that it may be mailed to
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the Court with the check? May I seal the documents? Or . . . does
the Petition and check need to be mailed to the Court separately?
In a response dated August 6, 2007, a prison staff member wrote, “I spoke to
law library and they handle these. No, it cannot be sent together. You need
to contact them for this particular withdraw[a]l.”
Medley eventually found someone outside of prison, his mother, to mail
his petition with his filing fee. They were filed with the district court on
March 21, 2007.
The district court adopted the report and recommendation of the
magistrate judge in full, and dismissed Medley’s petition as being untimely
filed. Medley v. Quarterman, No. 2:07-CV-0051, 2008 WL 763075 at *1 (N.D.
Tex. Mar. 21, 2008). The district court concluded that Medley was not
entitled to the benefit of the mailbox rule for his October 31, 2006 submission,
because he “failed to follow proper prison procedure and his mailing was
rejected.” Id. at *3. The district court also explained that “to the extent
petitioner argues he should be entitled to equitable tolling, in light of his
efforts to contact prison authorities and mail his federal petition, such claim
is without merit.” Id.
This court granted a certificate of appealability (“COA”) on two issues:
(1) whether the district court correctly ruled that Medley was not entitled to
the benefit of the mailbox rule, and thus, that his petition was filed outside
AEDPA’s statute of limitations; and (2) whether, in light of Medley’s attempt
to file his petition in a timely fashion, Medley was entitled to equitable tolling
of the statute of limitations.
In our original opinion in this case, we affirmed the judgment of the
district court. We explained that “the mailbox rule ‘[does] not relieve a
prisoner of the responsibility of doing all that he or she can reasonably do to
ensure that documents are received by the clerk of court in a timely manner.’
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Dison v. Whitley, 20 F.3d 185, 187 (5th Cir. 1994) (quoting Thompson v.
Rasberry, 993 F.2d 513, [515] (5th Cir. 1993)) (internal quotation marks
omitted).” Medley, 400 F. App’x at 968-69 (first alteration in original).
“Accordingly, ‘[f]ailure to stamp or properly address outgoing mail or to follow
reasonable prison regulations governing prisoner mail does not constitute
compliance with this standard’ and thereby does not entitle one’s submission
to the benefits of the mailbox rule. [Dison, 20 F.3d at 187] (quoting
Thompson, 993 F.2d at 514) (emphasis removed and internal quotation marks
omitted).” Medley, 400 F. App’x at 969 (first alteration in original).
We also explained that the purported mail regulation was reasonable
because it “has clear administrative benefits: It relieves the prison of the
need to keep track of un-mailed petitions and the responsibility to ensure that
the fee is properly submitted with the petition. Therefore, as it does not
improperly burden a prisoner’s filing of his or her habeas petition, and it
serves a positive purpose, the mail regulation is reasonable.” Id. Thus,
because Medley had failed to comply with a reasonable mail regulation, we
concluded that “the mailbox rule does not apply to Medley’s October 31
submission of his habeas petition to his prison mail room. Neither party
contests that Medley failed to comply with the prison’s regulation for mailing
his habeas petition. Therefore, his petition was not accepted by the mail
room and was returned to Medley. Contrary to Medley’s request that his
petition be held so that it could be combined with his filing fee, the regulation
required that the petition be mailed separately from the filing fee and
mandated that the petition could not be held pending the withdrawal of the
fee from Medley’s prison account.” Id.2
2
Of course, these conclusions were based on the premise that the purported mail
regulation actually existed.
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Nor, we concluded, was Medley’s concern about complying with Rule
3(a) justified: “Although Rule 3(a) of the Rules Governing Section 2254 Cases
in the District Courts states that a petition must be accompanied by the filing
fee . . . our court has stated that the mailbox rule ‘constitutes an exception’ to
Rule 3’s requirements; thus a pro se prisoner like Medley need not mail his
fee with his petition in order for it be treated as filed.” Id. (citing Cousin v.
Lensing, 310 F.3d 843, 847 (5th Cir. 2002)).
In his petition for rehearing, Medley asserts that after he submitted his
reply brief, he received a response to a grievance, proving that there was no
prison regulation requiring him to submit and mail his habeas petition
separate from his request that the filing fee be withdrawn and mailed to the
court. Thus, he argues, his petition was properly submitted on October 31,
2006, and under the mailbox rule, should be considered filed as of that date.
Attached to the petition was a “Step 1 Offender Grievance Form,” which
Medley submitted to the prison on December 14, 2009. On the grievance,
Medley had written, in relevant part,
It is prison regulation that legal mail may not be submitted and
processed with requests for withdrawal from offenders’ account to
enable the mailing of legal mail with a check.
Federal courts require petition for writ of habeas corpus to be
accompanied with a $5 filing fee. See Rules governing 28 U.S.C.
§ 2254. However, Said Prison Regulation prohibits the mailing of
pleadings with withdrawal slips/checks.
In response to this grievance, a prison staff member wrote, in relevant part,
on the same form,
Your complaint has been investigated and reviewed. Mailroom
does not process withdrawals as you state. You send a
withdrawal request to the mailroom for court fees. They process
the withdrawal and place it in the provided envelope without
reviewing the contents.
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This response is dated as being returned to Medley on January 12, 2010,
eight days after Medley’s reply brief was filed with this court.
Upon receiving Medley’s petition for rehearing, we requested a response
from the respondent. In that response, the respondent’s counsel of record, a
deputy attorney general from the Office of the Attorney General of Texas,
explained that an “investigation reveal[ed] that the Clements prison officials
do not have any regulation in place that prevents offenders from submitting
their court mailing attached to their withdrawal request.” Resp. to Pet. Reh’g
at 4. The investigation was conducted by an investigator with the Office of
the Attorney General. In an affidavit attached to the response, he states that
Nancy Jowers, the Clements Unit Mail Room Supervisor until October 31,
2006,3 “stated that offenders always were allowed by the Mail Room to mail
court filing and fee withdrawal requests together.” The investigator’s
affidavit also states that Darryl Glenn, the Law Library Supervisor at the
time that Medley attempted to mail his habeas petition, “stated that
offenders could always submit court filings and fee request [sic] together to
the Law Library.” Moreover, all six employees of the Clements Unit whom
Clough interviewed stated that they “knew of no such written policy or
procedure” which “address[ed] the issue of whether an offender could submit
a court filing and a fund withdrawal to be mailed with it or submit a court
filing and a fund withdrawal to be mailed separately.”
DISCUSSION
“The decision of a district court to deny a habeas application on
procedural grounds is reviewed de novo.” Howland v. Quarterman, 507 F.3d
840, 843 (5th Cir. 2007).
3
October 31, 2006 is the day that Medley submitted his habeas petition to the mail
room.
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We conclude that Medley’s October 31, 2006 attempt to mail his habeas
petition is entitled to the benefit of the mailbox rule. Although there is an
exception to the mailbox rule when a prisoner fails to do “all that he or she
can reasonably do to ensure that documents are received by the clerk of court
in a timely manner,” Dison, 20 F.3d at 187 (quoting Thompson, 993 F.2d at
515) (internal quotation marks omitted), that exception does not apply here.
In view of what we now know — that the purported regulation cited by prison
staff in erroneously rejecting Medley’s habeas petition does not exist — it is
apparent, and the respondent does not contest, that Medley complied with all
applicable regulations when he submitted his petition to the prison mail
room.
The respondent makes three unavailing arguments for why we should
nonetheless affirm the dismissal of Medley’s petition as being untimely filed:
(1) that Medley waived the argument that the purported mail regulation does
not exist; (2) that Medley should not be afforded the benefit of the mailbox
rule, because his October 31, 2006 attempt to mail his petition was
unsuccessful; and (3) that Medley’s claim that he attempted to send his
petition on October 31, 2006, is conclusory. We address each argument in
turn.
A.
First, we reject the respondent’s contention that we should not consider
Medley’s argument that the purported mail regulation does not exist, because
he failed to raise this claim until filing his petition for rehearing. This case is
similar to N.L.R.B. v. Robin Am. Corp., 667 F.2d 1170, 1171 (5th Cir. 1982),
in which we explained that we would consider an argument raised for the
first time in a petition for rehearing because there was an “extraordinary
circumstance justifying the failure to [raise the argument] until now.” Id.
Specifically, the decision below (which this court had affirmed) was “clearly”
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erroneous in light of an intervening Supreme Court decision, and “[i]t would
have been futile, if not frivolous” for the party to raise the argument before
the Supreme Court decision was issued. Id.
We conclude that an extraordinary circumstance also exists in the
instant appeal. For Medley to have argued previously that the purported
mail regulation did not exist would have been futile, if not frivolous. He was
hardly in a position to question the representations made by both prison
officials and respondent’s counsel that the regulation did exist. Indeed,
Exhibits C and D of the record show that Medley continued to inquire about
the proper procedure for submitting his habeas petition and filing fee, and
that prison staff continued to represent to him that the purported regulation
existed. Only after Medley had filed his reply brief with this court was he
given any hint, apparently by happenstance, that the regulation did not exist.
Additionally, in light of the newly-uncovered fact that the purported
mail regulation does not exist, our prior decision was clearly erroneous.
Medley complied with all applicable regulations in submitting his petition to
the prison mail room on October 31, 2006, and thus is entitled to the benefit
of the mailbox rule. And because his submission occurred before the
expiration of the one-year statute of limitations, we should have reversed,
rather than affirmed, the district court’s dismissal of Medley’s petition as
untimely filed.
Moreover, for us to conclude that Medley has waived this argument
would result in a perverse outcome. Namely, it would reward respondent’s
counsel for failing to investigate and correctly represent his client’s policies to
Medley, the district court, and this court. This court relied on those
representations in issuing our erroneous original opinion. The respondent’s
current counsel of record, who was also the counsel of record for the
respondent’s original brief to this court, explains that until we requested a
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response, he “assum[ed] that facts presented in Medley’s exhibits and
admissions were as they appeared.” Resp. to Pet. Reh’g 3. Counsel appears
to be referring to the responses from prison staff regarding the mail room’s
purported policy. However, counsel acknowledges that he had no basis to
believe that the representations made by those staff were correct, because he
“was not familiar with the local practices of the Clements Unit mail room”
when he drafted the original brief to this court. Id. We emphasize that in the
future, we expect counsel to conduct any necessary investigations in order to
ensure that he accurately represents the policies of his client to this court.
B.
Second, we are unpersuaded by the respondent’s contention that
Medley should not be entitled to the benefit of the mailbox rule because his
October 31, 2006 attempt to mail his petition was unsuccessful, and that his
subsequent successful attempt to mail his petition occurred after the statute
of limitations had expired. That Medley’s October 31, 2006 attempt was
unsuccessful does not affect the application of the mailbox rule, which applies
“as of the moment [the prisoner’s document] is delivered to prison officials for
mailing to the [district court] clerk.” Coleman, 184 F.3d at 401 (emphasis
added). Here, that moment occurred on October 31, 2006, when Medley
delivered his habeas petition to prison staff with a request that they mail it to
the district court. That the petition was returned to Medley, through no fault
of his own, does not change our conclusion.
Indeed, the logical implication of the requirement that prisoners “follow
reasonable prison regulations governing prisoner mail” to receive the benefit
of the mailbox rule, Thompson, 993 F.2d at 515, is that the mailbox rule still
applies when mail is rejected on an unreasonable ground. Here, prison
officials’ returning Medley’s mail because he failed to comply with a non-
existent regulation was unreasonable. The mailbox rule does not require pro
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se prisoners to compensate for the prison’s errors, especially where, as here, it
may be impossible for them to even discern such an error. Therefore, the
mailbox rule applied to Medley’s October 31, 2006 attempt to mail his
petition, even though that attempt was not successful.
C.
Third, the respondent erroneously argues that Medley should not be
entitled to the benefit of the mailbox rule because his claim that he submitted
his habeas petition to the prison mail room on October 31, 2006 is conclusory.
As we explained in the background section of this opinion, Medley supported
his claim with not only his signed statements in his brief, but also two
exhibits, Exhibits A and B, which he introduced into the record. The
respondent has not explained why we should doubt the authenticity of those
exhibits, or pointed to anything in the record that is inconsistent with
Medley’s claim.
Notably, the respondent does not suggest what other form of
documentation Medley should have provided. Medley does not have the
benefit of additional documentation, such as an entry on the prison mail log,
because the prison staff wrongly rejected his attempted mailing. To require
Medley to provide more documentation, under these circumstances, would
reward the Texas Department of Criminal Justice for the misrepresentations
made by its prison staff.
CONCLUSION
In sum, we conclude that Medley’s October 31, 2006 attempt to mail his
habeas petition is entitled to the benefit of the mailbox rule, and thus that his
petition was timely filed with the district court. Accordingly, we REVERSE
the district court’s decision dismissing Medley’s petition as untimely filed,
and REMAND for further proceedings consistent with this opinion.
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