UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-6129
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARCUS ANTONIO MCNEILL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:08-cr-00188-F-1)
Argued: March 19, 2013 Decided: May 1, 2013
Before GREGORY, WYNN, and DIAZ, Circuit Judges.
Reversed and remanded by unpublished opinion. Judge Gregory
wrote the opinion, in which Judge Wynn and Judge Diaz joined.
ARGUED: Andrew Barr, DUKE UNIVERSITY SCHOOL OF LAW, Durham,
North Carolina, for Appellant. Shailika K. Shah, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
ON BRIEF: James E. Coleman, Jr., Sean E. Andrussier, Evan Coren,
Emily Spencer Munson, Seth Reich, DUKE UNIVERSITY SCHOOL OF LAW,
Durham, North Carolina, for Appellant. Thomas G. Walker, United
States Attorney, Jennifer P. May-Parker, W. Ellis Boyle,
Assistant United States Attorneys, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
GREGORY, Circuit Judge:
Marcus Antonio McNeill appeals the district court’s
dismissal of his motion for relief from a federal conviction
under 28 U.S.C. § 2255. The district court ruled that McNeill’s
error in addressing his petition to the wrong district court
rendered the prison mailbox rule, as articulated in Houston v.
Lack, 487 U.S. 266 (1988), inapplicable. As such, the court did
not conduct a factual inquiry into whether McNeill actually sent
his petition -- albeit to the wrong court -- before the statute
of limitations expired. On appeal, McNeill argues that his
petition was timely under the prison mailbox rule or,
alternately, that the court should consider the petition timely
under the doctrine of equitable tolling. We do not reach his
latter argument. Instead, we reverse the district court’s
ruling that McNeill’s addressing error was fatal, and conclude
that if McNeill sent his petition as he said he did, then the
prison mailbox rule is applicable. As such, we remand for
factual findings in accordance with the instructions herein.
I.
In 2009, a jury convicted McNeill of conspiracy to
distribute, and possess with the intent to distribute, 50 grams
or more of crack cocaine and 500 grams or more of powder
cocaine. The district court sentenced him to 420 months in
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prison. We affirmed the district court’s judgment and sentence
in an unpublished per curiam opinion. United States v. McNeill,
372 F. App’x 420 (4th Cir. 2010). The U.S. Supreme Court denied
certiorari on June 21, 2010, initiating the one-year statute of
limitations for habeas relief under 28 U.S.C. § 2255, to
terminate on June 21, 2011. See McNeill v. United States, 130
S. Ct. 3487 (2010); 28 U.S.C. § 2255(f).
After false starts with two attorneys, McNeill enlisted a
fellow inmate, known to him as “Brother Bey,” to help him file
his § 2255 petition pro se. Bey mistakenly told McNeill to file
his petition with the district court in the Southern District of
Indiana, where McNeill was incarcerated at the time, instead of
with the appropriate district court in the Eastern District of
North Carolina, where McNeill was sentenced. See 28 U.S.C.
§ 2255(a). According to McNeill, he filled out a standard
Matthew Bender & Co. form to set out his claims for relief, and
then hand delivered his petition with first-class postage to
prison mailroom staff at the United States Penitentiary in Terre
Haute, Indiana on May 23, 2011. McNeill later conferred with
another inmate, R. Casper Adamson, who informed McNeill that he
had mailed his petition to the wrong court. McNeill sent a
letter on August 16, 2011, to the Clerk of Court in the Southern
District of Indiana to request confirmation that his petition
had arrived and had been filed. He did not receive a response.
3
He sent a second letter on October 31, 2011, and received a
standard form response stating:
The material you have submitted does not appear to be
intended for filing in the U.S. District Court for the
Southern District of Indiana and is therefore being
returned to you. If the material is intended for
filing in the District Court, please return it and
include the docket number for the case in which it is
to be filed.
There was also a one-sentence handwritten explanation above
the standard form response, “[w]e do not a [sic] case for you in
this district.”
On November 5, 2011, McNeill wrote a letter to the Clerk of
Court in the Eastern District of North Carolina asking if his
petition had been transferred. Before receiving a response,
McNeill filed a motion to accept his petition as timely filed
along with a “Sworn and Incorporated Memorandum of Law as Timely
Filed” pursuant to 28 U.S.C. § 1746. The district court in North
Carolina received the motion on December 5, 2011.
On December 12, 2011, the district court denied McNeill’s
motion to accept the petition as timely filed. The court found
that misplaced reliance on a jailhouse lawyer does not
constitute the extraordinary circumstances required for a grant
of equitable tolling.
McNeill filed a motion for relief from the judgment on
December 21, 2011. McNeill argued that the district court
should have applied the “prison mailbox rule,” which establishes
4
that a petition is deemed filed upon delivery to prison mailroom
officials. Houston, 487 U.S. at 270-72. The district court
found that the prison mailbox rule did not apply because the
envelope in question was not correctly addressed to the proper
recipient.
McNeill timely appealed the district court’s decision. We
granted a certificate of appealability and have jurisdiction
pursuant to 28 U.S.C. § 2253.
II.
Where a petitioner brings an appeal related to the denial
of a § 2255 motion, we review de novo the legal conclusions of
the district court. United States v. Nicholson, 475 F.3d 241,
248 (4th Cir. 2007).
McNeill argues that he timely filed his § 2255 petition
because he gave it to the prison mailroom staff on May 23, 2011,
four weeks before the statute of limitations ran. In Houston,
the Supreme Court announced the prison mailbox rule establishing
that a pro se litigant’s legal papers are considered filed upon
“delivery to prison authorities, not receipt by the clerk.” 487
U.S. at 275. The Court sympathized with the limitations on a
pro se prisoner who is
[u]nskilled in law, unaided by counsel, [] unable to
leave the prison, [and whose] control over the
processing of his notice necessarily ceases as soon as
5
he hands it over to the only public officials to whom
he has access -- the prison authorities . . . .
Id. at 271-72. The prison mailbox rule protects against
potential mishandling or delay by prison staff and others,
whether intentional or unintentional. Rule 3(d) of the Federal
Rules Governing 28 U.S.C. §§ 2254 and 2255 Cases codified the
rule, as follows:
Rule 3(d) Inmate Filing. A paper filed by an inmate
confined in an institution is timely if deposited in
the institution’s internal mailing system on or before
the last day for filing. If an institution has a
system designed for legal mail, the inmate must use
that system to receive the benefit of this rule.
Timely filing may be shown by a declaration in
compliance with 28 U.S.C. § 1746 or by a notarized
statement, either of which must set forth the date of
deposit and state that first-class postage has been
prepaid.
McNeill’s case presents a matter of first impression for
the Fourth Circuit, but the disposition and reasoning of other
circuits in similar cases is informative. In Huizar v. Carey, a
California state prisoner convicted of first degree murder
stated he delivered a state court habeas petition to prison
mailroom officials on April 15, 1996. 273 F.3d 1220, 1222 (9th
Cir. 2001). On June 19, 1996, he wrote to the court to inquire
about the petition but received no reply. Id. Twenty-one
months later, his sister submitted a second copy of the
petition. Id. Huizar wrote to inquire about his second attempt
at filing the petition, and received a response stating that the
6
petition had never been received. Id. After Huizar was finally
able to file his state habeas petition, and the state court
denied it, he filed a federal habeas petition. Id. The
district court dismissed the petition as time-barred. Id. The
Ninth Circuit, however, found that Huizar should “get[] the
benefit of the prison mailbox rule, so long as he diligently
follows up once he has failed to receive a disposition from the
court after a reasonable period of time.” Id. at 1223. The
court emphasized that it was applying Houston because Huizar had
no control of the petition once it left his hands. Id.
Ultimately, the court remanded to the district court to make
factual findings regarding whether Huizar actually delivered the
petition to prison mail authorities and whether he was diligent
in his follow-up efforts. Id. at 1224. The court concluded
that “[i]f the district court finds that the facts are as Huizar
claims them to be, it shall deem his petition timely and
consider it on the merits.” Id.
The Eleventh Circuit also applied the prison mailbox rule
where the document in question was never filed, but rejected the
Ninth Circuit’s diligence requirement. Allen v. Culliver, 471
F.3d 1196 (11th Cir. 2006) (per curiam). In Allen, the district
court denied a motion to accept as timely a Notice of Appeal
(“NOA”) from denial of a petition for habeas relief. The first
document the district court received arrived one year after it
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was due and included a claim that petitioner was entitled to the
prison mailbox rule even though the district court never
received the NOA that petitioner said he timely delivered to
prison mail staff. Id. at 1198. The district court assumed the
document was in fact delivered on time, but, applying Huizar’s
diligence requirement, denied the motion on the basis that the
inmate “failed to act with reasonable diligence in following up
with court officials . . . .” Id. The Eleventh Circuit
reversed, stating that “[o]nce there has been a finding of fact
that a timely notice of appeal was in fact delivered to the
proper prison authorities (proper postage prepaid) for mailing
to the district court, there is no room, either in Houston or in
Fed. R. App. 4(c), for the operation of a diligence
requirement.” Id. The court remanded for further fact-finding
regarding whether or not Allen actually delivered the NOA to
prison authorities. Id.
Huizar and Allen illustrate the fact-bound nature of the
inquiry where a prisoner claims to have submitted a legal
document to prison mail authorities, but no document arrives or
is filed at the district court. While there is discord between
Huizar and Allen on whether to impose a diligence requirement,
both courts remanded for further factual findings as to whether
the legal documents in question were actually delivered to the
prison mail system on time.
8
We similarly find that the prison mailbox rule should apply
if McNeill mailed his petition before the end of the applicable
limitations period. The foundational rationale for the prison
mailbox rule is that a prisoner should not be held accountable
for the handling of his mail where he has no control. Houston,
487 U.S. at 271. As the Supreme Court explained, “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 . . . .” Id. A litigant not confined to prison would
be able to hand deliver his petition to a clerk of court. If he
approached the wrong court, he would likely learn of his mistake
upon attempting to submit the petition. The pro se prisoner
does not have the privilege of shepherding his documents through
a complex legal system. His lack of control is a deprivation
for which the prison mailbox rule compensates.
Here, the district court has not made any clear factual
finding that McNeill did, or did not, mail the petition on May
23, 2011. There is yet no evidence on the record from the
prison’s outgoing mail log that clarifies whether McNeill sent
his petition when he said he did. McNeill correctly points out
that the court’s sua sponte ruling precluded the government from
conducting the straightforward inquiry necessary to determine
whether there is a time-certain record of McNeill’s mailings.
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We believe it was premature to deny McNeill’s motion
without first completing this basic factual inquiry. McNeill
satisfied his initial burden of proof establishing an exception
to the statute of limitations by submitting a declaration under
§ 1746, rendering him eligible for the prison mailbox rule. See
Allen, 471 F.3d at 1198. The state now bears the burden of
proof to establish that the statute of limitations has run and
that the prison mailbox rule does not apply. Ray v. Clements,
700 F.3d 993, 1007 (7th Cir. 2012).
On remand, the district court must answer two narrow
questions. First, the court must determine whether McNeill sent
his petition on time. The petitioner’s diligence after a timely
submission of his petition is irrelevant. There is nothing in
§ 2255, nor any corresponding rule, requiring that a pro se
litigant diligently monitor his petition after it has been
submitted. Nor did the Supreme Court require diligence in
Houston. The district court here should not consider
petitioner’s diligence in making its factual determinations.
This inquiry is strictly limited to what transpired before June
21, 2011, when the statute of limitations for filing the
petition ended.
Of course, this case is different than Huizar and Allen
because, unlike the petitioners in those cases, McNeill admits
he addressed his petition to the wrong district court. However,
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upon receiving a wrongfully filed petition in a civil action, a
court “shall, if it is in the interest of justice, transfer such
action or appeal to any other such court in which the action or
appeal could have been brought at the time it was filed or
noticed . . . .” 28 U.S.C. § 1631. The operation of § 1631 is
essential to the survival of McNeill’s petition. Under § 1631,
the receiving court treats the petition as filed when it was
deemed filed in the sending court. As such, the need for
transfer does not affect the timing principle of the prison
mailbox rule. 1
However, if McNeill had sent his petition to another errant
location where § 1631 did not mandate transfer, then we could
not find that his petition was timely filed because it never
would have arrived in the appropriate court. For instance,
McNeill’s petition would be doomed if it had been sent to and
received by a government office that is not a court as defined
by § 1631 and 28 U.S.C. § 610. 2 The prison mailbox rule and
1
The relevant portion of § 1631 explains that “the action
or appeal shall proceed as if it had been filed in or noticed
for the court to which it is transferred on the date upon which
it was actually filed in or noticed for the court from which it
is transferred.” 28 U.S.C. § 1631.
2
Section 1631 mandates transfer from “courts,” including
“the courts of appeals and district courts of the United States,
the United States District Court for the District of the Canal
Zone, the District Court of Guam, the District Court of the
Virgin Islands, the United States Court of Federal Claims, and
(Continued)
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§ 1631 work in tandem in this case: The prison mailbox rule
dictates that McNeill’s petition was filed when he relinquished
control to the prison mailroom authorities and § 1631 assures us
that the District Court for the Southern District of Indiana
would have transferred the petition to the proper court. As
such, the second question the district court must answer on
remand is whether McNeill did in fact send his petition to the
district court in Indiana, or some other court that falls under
the mandate of § 1631.
To clarify, we do not treat transfer under § 1631 as
mandatory. See Jones v. Braxton, 392 F.3d 683, 691 (4th Cir.
2004) (declining petitioner’s “invitation to impose on the
district courts a blanket policy of mandatory transfer of
unauthorized successive petitions . . . for consideration as PFA
motions”). A district court retains discretion to dismiss a
wrongly filed petition if it is frivolous. Phillips v. Seiter,
173 F.3d 609, 610-11 (7th Cir. 1999) (explaining that transfer
of a frivolous, time-barred case is a waste of judicial
resources); Galloway Farms, Inc. v. United States, 834 F.2d 998,
1001 (Fed. Cir. 1987) (declining to transfer claims under § 1631
because they were frivolous). However, where a petitioner’s
the Court of International Trade. 28 U.S.C. § 1631; 28 U.S.C.
§ 610.
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right to the “great writ” is at stake, there are few scenarios
where it would not be in the interest of justice to transfer the
petition to the proper court. 3 See Ex parte Yerger, 8 Wall. 85,
95 (1868) (“The great writ of habeas corpus has been for
centuries esteemed the best and only sufficient defence of
personal freedom.”).
We have held before, albeit in an unpublished case, that
transfer under § 1631 for an improperly filed petition is in the
interest of justice where the statute of limitations would
otherwise bar a petitioner from pursuing his habeas rights.
Shaw v. United States, 417 F. App’x 311 (4th Cir. 2011)
(unpublished). In Shaw, the petitioner attempted to file a 28
U.S.C. § 2241 petition in the Eastern District of North
Carolina. Id. at 312. The district court found that the claims
the petitioner submitted were properly raised in a § 2255
petition, but refused to construe the petition as such because
proper jurisdiction for a § 2255 motion was in the Northern
District of Alabama. Id. We reversed and found that the
district court should have transferred the petition pursuant to
§ 1631. Id. We explained that “[s]uch a transfer would serve
the interest of justice because, if Shaw were now to file a
3
The petition in question here is McNeill’s first. Where a
petitioner has filed multiple successive petitions, a court
could find the petition frivolous and dismiss immediately.
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§ 2255 motion in that district, consideration of his claims
likely would be barred by the applicable one-year limitations
period.” Id. Additionally, the Seventh Circuit -- which is the
court of appeals for the Southern District of Indiana -- has
explained that a “compelling reason” for transfer exists under
§ 1631 when a mis-addressed, but otherwise timely filed petition
will be time-barred if transfer does not occur. Phillips, 173
F.3d at 610. We have no trouble concluding that the Southern
District of Indiana would have been compelled by this precedent
to transfer the petition to the Eastern District of North
Carolina.
We find that in these circumstances, transfer from the
Southern District of Indiana to the appropriate court in the
Eastern District of North Carolina would be in the interest of
justice. If on remand the district court makes a factual
finding that McNeill did submit his petition to the prison mail
authorities before the statute of limitations ran, and that he
sent it to a court bound by § 1631, then his petition should be
heard on the merits.
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III.
For the reasons discussed above, we reverse the decision of
the district court and remand for further proceedings in
accordance with the above instructions.
REVERSED AND REMANDED
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