12-158.131 March 1, 2013

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

OVERTIS SYKES, )

)

Petitioner, )

)

v. ) No. 12 C 158

) 

UNITED STATES OF AMERICA, )

)

Respondent. )

MEMORANDUM OPINION

On November 29, 2012, this court entered a memorandum opinion

and order denying Overtis Sykes’s pro se motion to vacate his

sentence pursuant to 28 U.S.C. § 2255. We also denied a

certificate of appealability. On February 4, 2013, the Court of

Appeals received, and then sent to this court, Sykes’s pro se

notice of appeal from our denial of the § 2255 motion, along with

two pro se motions. One motion [22] seeks a certificate of

appealability from the Court of Appeals and is therefore stricken

from our docket. The other motion [23] is titled “Motion to File

Certificate of Appealability and Notice of Appeal Filed Out of

Time.” Insofar as this motion seeks a certificate of

appealability, it is denied as moot because we have already denied

a certificate of appealability. The request to file a notice of
- 2 -

appeal “out of time,” however, is properly before us. See Fed. R.

App. P. 4(a)(5).

Sykes had 60 days from November 29, 2012, the date our order

was entered, to file a notice of appeal. See Fed. R. App. P.

4(a)(1)(B). Therefore, to be timely, Sykes’s notice of appeal had

to be filed by January 28, 2013. Under the “mailbox rule” of

Houston v. Lack, 487 U.S. 266 (1988), a notice of appeal is deemed

to be filed on the date a prisoner delivers it to prison officials

for mailing. 

Sykes relates the following in his motion. On Thursday,

January 24, 2013, the unit officer at his prison, the United States

Penitentiary at McCreary, Kentucky, announced that the institution

would soon be “on lockdown” due an impending ice storm and that any

outgoing legal mail should be delivered to him. Sykes handed his

legal mail to the unit officer that day. The following day,

Friday, January 25, 2013, Sykes’s legal mail was returned to him by

another unit officer, who informed him that it had to be taken to

the mail room. By that time, the institution was on lockdown, and

no mail was being sent out. The mail room was closed for the next

two days because it was the weekend. The institution remained on

lockdown on Monday and Tuesday, January 28 and 29, 2013, and

Thursday, January 31, 2013 was the first time after the lockdown

that Sykes was able to go to the mail room and send his legal mail. 
- 3 -

Attached to Sykes’s motion is a letter dated January 30, 2013

from his case manager at USP McCreary, R. Woods, who states that

the prison was on lockdown on January 25, 28, and 29, 2013, and

that Sykes was unable to send his legal mail. (Ms. Woods does not

provide any information regarding when Sykes handed anything to

prison officials for mailing.) 

Under Rule 4 of the Federal Rules of Appellate Procedure, the

district court may extend the time to file a notice of appeal if a

party so moves no later than 30 days after the time to appeal

expires and shows excusable neglect or good cause. Fed. R. App. P.

4(a)(5)(A). If the motion is filed after the expiration of the

time to appeal, notice must be given to the other parties. It does

not appear that Sykes gave the government notice of his motion.

There is another, more significant, problem. We have no

evidence on which to base a finding that Sykes filed his notice of

appeal in a timely fashion (by handing it to his unit officer, if

that indeed was the institutional system in place at the time for

handling legal mail) or that there is good cause to extend the time

for filing the notice (because of the lockdown circumstances and

subsequent delivery to the mail room). In order to receive the

benefit of the mailbox rule, prisoners must demonstrate that they

timely presented their submissions to prison authorities for

mailing. Lee v. County of Cook, 2 F. App’x 571, 573 (7th Cir.

2001) (citing Houston, 487 U.S. at 275). Federal Rule of Appellate
- 4 -

Procedure 4(c) addresses how a prisoner may demonstrate timeliness

when filing a notice of appeal--with a declaration under penalty of

perjury or a notarized statement that sets forth the date of

deposit into the prison mail system and states that first-class

postage has been prepaid. Similarly, a party requesting an

extension of time to file a notice of appeal must “show” excusable

neglect or good cause. Fed. R. App. P. 4(a)(5)(A)(ii). Sykes’s

motion does not contain any declaration under penalty of perjury or

notarized statement attesting to the facts set forth in the motion. 

Moreover, the motion is unspecific as to what date Sykes deposited

anything with the the mail room and is also unspecific as to what,

exactly, was handed to the unit officer and/or mailed. Sykes

repeatedly uses the generic term “legal mail” instead of stating

specifically what he did with his notice of appeal, which is the

key document here. 

The motion for an extension of time to file a notice of appeal

[23] is denied.

 

DATE: March 1, 2013

ENTER: ___________________________________________

John F. Grady, United States District Judge