UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________________
No. 97-30661
_______________________________
JEWEL SPOTVILLE,
Petitioner-Appellant,
VERSUS
BURL CAIN, Warden, Louisiana State Penitentiary, Angola, LA;
RICHARD P. IEYOUB, Attorney General, State of Louisiana,
Respondents-Appellees.
_____________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
______________________________________________________
July 31, 1998
Before POLITZ, Chief Judge, REYNALDO G. GARZA, and DENNIS, Circuit
Judges.
PER CURIAM:
Appellant Jewel Spotville appeals the dismissal of his pro se
habeas corpus petition for failure to comply with the procedures
provided for in 28 U.S.C. § 2244(b)(3)(A), as amended by the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).
Although Spotville tendered to prison authorities for mailing his
petition and application for in forma pauperis (“IFP”) status prior
1
to the effective date of the AEDPA, he did not pay a filing fee
that was subsequently required upon denial of his IFP status until
after the AEDPA took effect. The sole issue presented by this
appeal is when a habeas corpus petition should be considered filed
for purposes of determining the applicability of the AEDPA. This
question is one of first impression in this circuit. We hold that
the habeas corpus petition of a pro se prisoner litigant is filed
for purposes of determining the applicability of the AEDPA at the
time the petitioner tenders the petition to prison officials for
mailing. Accordingly, we reverse the dismissal of Spotville’s
petition and remand for further proceedings.
Facts
In 1973, Jewel Spotville was convicted of aggravated rape, at
that time a capital offense. Spotville was sentenced to life
imprisonment without benefit of parole, probation, or suspension of
sentence. In July 1995, Spotville, acting pro se, submitted a
habeas corpus petition, his fifth, along with an application to
proceed IFP, to the United States District Court for the Eastern
District of Louisiana.1 In his petition, Spotville argues
primarily that he was improperly convicted of a capital crime by a
10-2 jury verdict rather than by a unanimous jury verdict.
Spotville’s application to proceed IFP was denied on August
1
Spotville dated his petition as June 30, 1995, and it was
stamped as received by the Clerk of Court on July 25, 1995.
2
16, 1995 by a magistrate judge who found Spotville could pay the
$5.00 filing fee. Spotville paid this fee on April 23, 1997. Two
days later, the magistrate judge recommended that Spotville’s
habeas petition be dismissed without prejudice for his failure to
move in the Court of Appeals for authorization to file a successive
habeas application, pursuant to 28 U.S.C. § 2244(b)(3)(A), as
amended by the AEDPA. On May 21, 1997, the district court adopted
the magistrate judge’s recommendation and dismissed Spotville’s
petition without prejudice.
Spotville timely filed a notice of appeal and moved for a
certificate of appealability (“COA”). The district court granted
Spotville a COA, finding
that petitioner has made a substantial showing of the
denial of a constitutional right related to the following
issue[]: Petitioner’s application had to be denied on
the procedural basis that this is a successive writ. . .
. [T]hat he was convicted by a 10-2 verdict when a
unanimous verdict was required raises a serious issue of
ineffective assistance of counsel. I would very much
like to hear the matter on the substantive merits.
Analysis
Section 2244(b)(3)(A) of Title 28 provides:
Before a second or successive application permitted by
this section is filed in the district court, the
3
applicant shall move in the appropriate court of appeals
for an order authorizing the district court to consider
the application.
28 U.S.C. § 2244(b)(3)(A) (West 1998).
Section 2244(b)(3)(A) became effective when the AEDPA was
signed into law on April 24, 1996. See Lindh v. Murphy, --- U.S.
---, 117 S. Ct. 2059, 2067 (1997). Habeas petitioners “presenting
a second or successive § 2254 habeas petition are not subject to
the new successive habeas provisions unless their successive
petitions were filed in the district court after the AEDPA’s
effective date[.]” Moran v. Stadler, 121 F.3d 210, 211 (5th Cir.
1997).
Spotville’s fifth habeas petition, at issue in the present
case, was tendered to prison officials for mailing to the district
court in July 1995, approximately nine months before the effective
date of the AEDPA. The subsequently required filing fee was not
paid until one year after the effective date of the AEDPA, however.
Therefore, the question of whether Spotville’s habeas petition was
properly dismissed pursuant to the AEDPA centers on resolving when
his petition was “filed.”
This court has held that “the relevant date for determining
the applicability of the AEDPA to habeas corpus petitions is the
date that the actual habeas corpus petition is filed.” Williams v.
Cain, 125 F.3d 269, 274 (5th Cir. 1997) (emphasis added). Although
4
the use of the word “actual” suggests that tendering the petition
to prison officials for mailing is the crucial act of initiating
the habeas proceeding, the meaning of the word “filed” requires
further examination. The question of when a petition is filed for
the purposes of determining the applicability of the AEDPA to a
habeas action has not been addressed by this circuit, though the
question of when certain pleadings have been filed has been
addressed in other contexts.
Our prior decisions, and decisions of our sister circuits,
indicate that a habeas corpus petition should be deemed filed when
the petition is handed over to prison authorities for mailing. In
Hernandez v. Aldridge, 902 F.2d 386 (5th Cir. 1990), we considered
at what point a pro se prisoner’s notice of appeal is filed for
purposes of determining if it had been filed within requisite time
limitations. In that case, the plaintiff had tendered his
complaint to the court clerk before the limitations time-bar, but
the clerk did not docket it as “filed” until 19 days later, after
the limitation period had expired. We held “that when a notice of
appeal is in the custody of the clerk within the time required by
statute, the notice has been ‘filed’ within the requisite time.”
Id. at 388 (citation omitted) (emphasis added). We determined that
the clerk’s physical custody of the notice of appeal, upon its
being tendered by the plaintiff, was the point at which the notice
of appeal was “in the custody of the clerk,” not when the it was
5
technically entered as “filed.” Id.
Similarly, in Cooper v. Brookshire, 70 F.3d 377, 379 (5th Cir.
1995), we held that a pro se prisoner litigant’s Section 1983
complaint is filed as soon as the pleadings have been deposited
into the prison mail system. We relied on the Supreme Court’s
ruling in Houston v. Lack, 487 U.S. 266 (1988), which established
a similar “mailbox rule” for determining when a pro se notice of
appeal from dismissal of a habeas action would be considered filed.
In Houston, the Court recognized that, “[u]nskilled in law, unaided
by counsel, and unable to leave the prison, a pro se prisoner’s
control over the processing of his notice necessarily ceases as
soon as he hands it over[.]” Id. at 266. The Houston rationale was
adopted by this court in Cooper and is helpful in analyzing the
present case. Because we have recognized that a pro se litigant
has initiated, or “filed,” his petition properly when he has
completed everything within his control to deliver the actual
petition to the court, we should not create a separate and somewhat
contrary rule in a case in which a pro se litigant’s IFP status is
denied subsequent to initiating the petition. Cf. Cooper, 70 F.3d
at 381 (holding that a time-bar should have the same effect on all
pro se litigants, because they are “needful of a level playing
field”).
Recently, the Third Circuit applied Houston to the filings of
a pro se prisoner’s habeas petition for the purpose of applying the
6
AEDPA’s one-year time limit. In Burns v. Morton, 134 F.3d 109 (3d
Cir. 1998), the pro se litigant presented his habeas petition to
prison officials for mailing on April 22, 1997, one day before the
one-year limitations period provided for in 28 U.S.C. § 2244(d)(1)
expired. The petition was not received by the district court until
April 28, 1997, however, and was not docketed as filed until May 5,
1997. The district court concluded that the petition was filed
after the one-year limitations period that began running on April
24, 1996 had expired, and dismissed it as untimely. The Third
Circuit found that “the same concerns expressed by the Court in
Houston pertain to filing a pro se prisoner’s habeas petition.”
Id. at 112. Accordingly, the court reversed the dismissal of the
petition and held that “a pro se prisoner’s habeas petition is
deemed filed at the moment he delivers it to prison officials for
mailing to the district court.” Id. at 113; see also Peterson v.
Demskie, 107 F.3d 92, 93 (2d Cir. 1997) (applying Houston to its
consideration of when a Section 2254 petition is filed for purposes
of determining whether it was filed within a reasonable time of the
effective date of the AEDPA).
The Sixth Circuit has applied Houston to a petitioner’s motion
to file second or successive Section 2255 motions. That court held
that “[t]he § 2244(b)(3) motion to file the second or successive
petition or § 2255 motion will be deemed filed, for purposes of the
one-year limitation periods established by § 2244(d) and § 2255, on
7
the date that the § 2244(b)(3) motion is given to prison
authorities for mailing[.]” In re Sims, 111 F.3d 45, 47 (6th Cir.
1997) (citing Houston, 487 U.S. at 270).
In these cases, the courts expressed concern over the pro se
prisoner’s lack of control over the filing of documents. That same
concern is implicated here. Accordingly, we see no compelling
reason why we should reject the rationale of our decisions in
Hernandez and Cooper in this context. In Hernandez and Cooper, the
plaintiffs had, in a timely manner, performed what was required of
them to initiate proceedings. Once they had initiated the
proceedings by tendering their complaints, the time bar was no
longer applicable; whatever needed to follow in completing the
process of “filing” the pleadings at the clerk’s office was no
longer subject to the time bar.
In the present case, Spotville initiated his proceedings
properly by tendering to prison officials for mailing his habeas
petition and application for IFP status, pursuant to the pre-AEDPA
statutes, approximately nine months before the AEDPA went into
effect. The decision regarding his IFP status, and any necessary
subsequent action (the payment of the fee), did not change the set
of rules pursuant to which Spotville tendered his petition. In
Hernandez, the timeliness of the notice of appeal for purposes of
the limitations period was not dependent on actions occurring after
Hernandez initiated the process by tendering the requisite papers
8
to prison officials for mailing to the court; similarly, the
timeliness of Spotville’s petition for purposes of application of
the effective date of the AEDPA depends, not on a fee payment, but
on when Spotville delivered his papers to prison authorities for
filing.
Furthermore, a rule that payment of a filing fee upon the
subsequent denial of IFP status determines the applicability of the
AEDPA would be contrary to this court’s traditional disposition of
leniency toward pro se litigants. See Gallegos v. Louisiana Code
of Criminal Procedure Art. 658, 858 F.2d 1091, 1092 (5th Cir. 1988)
(holding that leniency should be accorded to pro se litigants when
the defect in a complaint is merely procedural and there are
potential grounds for relief); Moawad v. Childs, 673 F.2d 850, 851
(5th Cir. 1982) (holding that “[a] pro se complaint . . . should
not be dismissed unless it appears that the plaintiff can prove no
set of facts which would entitle him to relief”).2
Our holding in Grissom v. Scott, 934 F.2d 656 (5th Cir. 1991),
has no bearing on our decision today. In Grissom, the plaintiff
filed a Section 1983 action against his former defense attorney.
Grissom sought IFP status. The magistrate judge denied the IFP
2
This court’s disposition of leniency toward pro se litigants
has been tempered in certain circumstances, however. See Saahir v.
Collins, 956 F.2d 115, 119 (5th Cir. 1992) (holding there should be
no distinction between pro se petitioners and those represented by
counsel, for abuse of writ purposes); but see May v. Collins, 948
F.2d 162, 166 n.3 (5th Cir. 1992) (acknowledging distinction
between abusive petitions and successive petitions).
9
application and ordered payment of a partial filing fee. After
Grissom paid the partial fee, the magistrate found the complaint to
be frivolous and recommended dismissal pursuant to 28 U.S.C. §
1915(d). Grissom appealed, arguing that, once he paid the partial
filing fee, his complaint could not be dismissed as frivolous
pursuant to Section 1915(d) and that a summons should have issued.
We agreed, holding that “when a district court allows a litigant to
proceed upon the payment of a partial filing fee, the court should
treat the complaint in the same manner as a complaint that was not
filed in forma pauperis.” Id. at 657 (citations omitted).
In support of our holding, we stated that a complaint is
“deemed filed” upon the payment of the filing fee, if any were
required. Id. (citing Herrick v. Collins, 914 F.2d 228, 230 (11th
Cir. 1990)). This statement, however, is limited in its
application to determining when a petition should be treated as one
not filed IFP for purposes of applying Federal Rule of Civil
Procedure 4(a), which requires that a summons issue “[u]pon the
filing of a complaint.” Grissom relied on Herrick, wherein the
Eleventh Circuit was expressly concerned with reconciling the
effect of Rule 4(a) on complaints not filed IFP with the effect of
Rule 4(a) on complaints filed IFP where IFP status was denied.
Herrick, 914 F.2d at 230. Essentially, Grissom merely directs us
to treat a petition filed IFP as if it were a non-IFP petition
filed at the time of the payment of any required filing fee for
10
purposes of applying Rule 4(a). Grissom, however, does not direct
us in our more basic inquiry of when a petition filed IFP was
actually filed for purposes of determining the applicability of the
AEDPA.
Our prior decisions indicate that Spotville’s petition was
filed, for purposes of determining the applicability of the AEDPA,
in July 1995 when he tendered the papers to the prison authorities
for mailing to the district court, and not upon payment of a filing
fee subsequently required after his IFP status was denied. The
policy of leniency afforded pro se prisoner litigants because of
their lack of ability to control the processing of their petitions
supports this conclusion. Therefore, we hold that a pro se
prisoner’s habeas petition is filed, for purposes of determining
the applicability of the AEDPA, when he delivers the papers to
prison authorities for mailing. Accordingly, we REVERSE the
district court’s dismissal of the habeas corpus petition and REMAND
for further proceedings.
11