Michigan Supreme Court 

# Order

Lansing, Michigan

May 12, 2006 Clifford W. Taylor,
Chief Justice

128447 Michael F. Cavanagh
Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan MITCHELL D. PUGH, Plaintiff-Appellant, Robert P. Young, Jr. Stephen J. Markman,
Justices

v SC: 128447 COA: 260183 Gratiot CC: 03-008373-AA DEPARTMENT OF CORRECTIONS, Defendant-Appellee.

________________ _______________ __________/

On order of the Court, th e application for leave to a ppeal the February 25, 2005 order of the Court of Appeals is consid ered, and it is DENIED, because we are not persuaded that the questions presented s hould be reviewed by this Court.

C ORRIGAN , J., concurs and states as follows:

I concur in the order denying leave to appeal. In response to Justice Kelly’s dissenting statement, I would note that plaintiff waited until the v ery last minute to mail his application for leave to appeal. Plaintiff placed the document in the prison mail only one business day before the filing deadline . There is no indicati on whatsoever that the Michigan Department of Correcti ons delayed the filing of plain tiff’s application. Rather, it was plaintiff’s own belated mailing that caused him to miss th e filing deadline. Therefore, contrary to Justice Kell y’s view, this is not a case that calls for the adoption of a prison mailbox rule.

K ELLY , J., dissents and states as follows:

Defendant lost his right to seek an appeal because hi s petition arrived at the court one day late. Defendant placed his petition in the prison mailbox on January 7. The deadline for filing was January 10. Prison o fficials put the petition in the United States mail on January 10, and it was delivered on Ja nuary 11. Because it was one day late, plaintiff lost his right to seek an appeal._______________________________________ __ 2

Justice Corrigan suggests that, because defendant waited until the last day to mail his application, he is no longer entitled to his appeal as of ri ght. I believe that defendant is given no less time within wh ich to file than is someone who is not incarcerated. It would be fundamentally unfair to conclude otherwise.

In order to remedy the wrong done in th is case, the Court sh ould adopt a prison mailbox rule. It could make filing of appeal s effective as of the date a prisoner puts his petition in the hands of prison authorities. This would comp ensate for the fact that the prisoner cannot go to th e court to file his petition and can not even get to a United States Postal Service mailbox, as others can.

Approximately 18 states ha ve adopted a prison mailbox rule. Eighteen years ago, the United States Supreme Court in Houston v Lack 1 wrote, “[T]he pro se prisoner has no
choice but to entrust the forward ing of his notice of appeal to prison authorities when he cannot control or supervise and we may have every incentive to delay.”

Federal appellate courts have adopted a formal prison mailbox ru le. FRAP 4(c). Michigan should accord prisoners the same acce ss to the courts.

1 487 US 266, 271; 108 S Ct 23 79; 101 L Ed 2d 245 (1988).

s0509 I, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

May 12, 2006

Clerk