1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-9-1998

Burns v. Morton

Precedential or Non-Precedential:

Docket 97-5568

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Recommended Citation

"Burns v. Morton" (1998). 1998 Decisions. Paper 5.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/5
Filed January 9, 1998 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

NO. 97-5568 

DONALD BURNS, 

 Appellant 

v. 

WILLIS E. MORTON, SUPERINTENDENT; 

PETER VERNIERO, THE ATTORNEY GENERAL OF THE 

STATE OF NEW JERSEY 

On Appeal from the United States District Court 

for the District of New Jersey 

(D.C. Civil No. 97-cv-02507) 

Submitted by the Clerk pursuant to I.O.P. Ch. 10.6 

October 9, 1997 

Before: BECKER, NYGAARD, and ROTH, Circuit Judges. 

(MOTIONS PANEL A) 

(Filed January 9, 1998) 

 DONALD BURNS #210090 

 Trenton State Prison, CN 861 

 Trenton, NJ 08625 

 Pro se 
 JENNIFER L. GOTTSCHALK 

 Office of Attorney General of 

 New Jersey 

 Richard J. Hughes Justice Complex 

 Trenton, NJ 08625 

 Counsel for Appellees 

OPINION OF THE COURT 

NYGAARD, Circuit Judge. 

The district court dismissed Donald Burns' petition for a 

writ of habeas corpus as untimely under 28 U.S.C. 

S 2244(d)(1), and granted a certificate of appealability to 

appeal from this dismissal. We conclude that Burns'

petition was timely filed under the principles set forth in 

Houston v. Lack, 487 U.S. 266 (1988). We will summarily 

reverse the dismissal, and remand the cause to the district 

court. 

I. 

Burns pleaded guilty in New Jersey Superior Court, Law 

Division, to multiple counts of robbery, aggravated assault, 

unlawful possession of a weapon, and conspiracy. On

September 10, 1987, Burns was sentenced to 100 years in 

prison with fifty years of parole ineligibility. The Appellate 

Division modified his sentence to forty years with a twentyyear period of parole ineligibility. The New Jersey Supreme 

Court denied Burns' petition for certification. 

Burns then filed a petition for post-conviction relief in 

state court, which denied relief. After extensive postconviction proceedings, the New Jersey Supreme Court 

denied his petition for certification on September 21, 1995. 

On April 22, 1997, Burns submitted his petition for a 

writ of habeas corpus under 28 U.S.C. S 2254, to officials at 

the New Jersey State Prison to be mailed to the Federal 

District Court for the District of New Jersey.1 The Clerk of 

_________________________________________________________________ 

1. Burns provided a copy of a receipt from prison officials verifying that 

he submitted his habeas petition for mailing on April 22. 

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the district court received Burns' petition on April 28, 1997. 

The district court granted Burns' application to proceed in 

forma pauperis on May 5, 1997, and the Clerk docketed 

Burns' habeas petition as filed on that date. 

In considering whether Burns' petition was timely filed, 

the district court first recognized that under Duarte v. 

Hershberger, 947 F. Supp. 146 (D.N.J. 1996), the petition 

could not be dismissed as untimely under the one-year 

period of limitation of 28 U.S.C. S 2244(d)(1) if the petition 

was filed on or before April 23, 1997. The court also noted 

Burns' assertion that he had submitted his petition to 

prison officials on April 22, 1997. Nonetheless, the court 

concluded that Houston v. Lack, under which a pro se 

prisoner's notice of appeal is considered filed at the time he 

submits it to prison officials for mailing, does not apply to 

habeas petitions. The court thus found that Burns' petition 

was filed after April 23, 1997, and dismissed it as untimely 

under S 2244(d)(1). The court also granted Burns a 

certificate of appealability to appeal from this dismissal. 

Burns filed a timely notice of appeal.2 

II. 

28 U.S.C. S 2244(d) provides in relevant part: 

 (1) A 1-year period of limitation shall apply to an 

 application for a writ of habeas corpus by a person 

 in custody pursuant to the judgment of a State 

 court. The limitation period shall run from . . . 

 (A) the date on which the judgment became final 

_________________________________________________________________ 

2. The appellees assert that we lack jurisdiction to hear this appeal 

because Burns' notice of appeal was untimely filed. The district court 

entered its order dismissing Burns' petition on July 18, 1997; the 

district court received Burns' notice of appeal on September 2, 1997, 

well beyond the thirty-day period for filing a notice of appeal. See Fed. 

R. App. P. 4(a)(1). However, Burns is incarcerated and benefits from Fed. 

R. App. P. 4(c), under which an inmate's "notice of appeal is timely filed 

if it is deposited in the institution's internal mail system on or before 

the 

last day for filing." Because Burns delivered his notice of appeal to 

prison officials for mailing on August 4, 1997, his notice of appeal was 

timely filed, and we have jurisdiction to hear his appeal. 

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 by the conclusion of direct review or the 

 expiration of the time for seeking such review; 

 . . . 

 (2) The time during which a properly filed application 

 for State post-conviction or other collateral review 

 with respect to the pertinent judgment or claim is 

 pending shall not be counted toward any period of 

 limitation under this subsection. 

28 U.S.C. S 2244(d). 

Section 2244(d) became effective on April 24, 1996, when 

the Antiterrorism and Effective Death Penalty Act of 1996 

was signed into law. Applying S 2244(d) as of its effective 

date would require Burns to have filed his habeas petition 

before September 21, 1996, one year after his petition for 

certification was denied by the New Jersey Supreme Court, 

but less than five months after S 2244(d) became effective. 

Several other courts of appeals have held that applying 

S 2244(d) in this manner "would impermissibly `attach new 

legal consequences to events completed before its 

enactment.' " Calderon v. United States Dist. Court for the 

Cent. Dist. of Cal., ___ F.3d ___, 1997 WL 671283, at *4 (9th 

Cir. Oct. 29, 1997), quoting Landgraf v. USI Film Prods., 511 

U.S. 244, 270 (1994); see Lindh v. Murphy, 96 F.3d 856 

(7th Cir. 1996), rev'd on other grounds, 117 S. Ct. 2059 

(1997); see also United States v. Simmonds, 111 F.3d 737 

(10th Cir. 1997) (holding that 28 U.S.C. S 2255's one-year 

limitation cannot bar motions filed prior to April 24, 1997). 

These courts have fashioned a rule that "[n]o petition filed 

on or before April 23, 1997 -- one year from the date of 

AEDPA's enactment -- may be dismissed for failure to 

comply with [S 2244(d)(1)'s] time limit." Calderon, 1997 WL 

671283, at *4. The United States Court of Appeals for the 

Second Circuit has articulated a somewhat more flexible 

rule that a habeas petitioner must be afforded a 

"reasonable time" after April 24, 1996, tofile his petition. 

Peterson v. Demskie, 107 F.3d 92, 93 (2d Cir. 1997) (finding 

petition filed 72 days after effective date timely under 

S 2244(d), even though petitioner's conviction became final 

in 1978). 

We agree that applying S 2244(d)(1) to bar the filing of a 

habeas petition before April 24, 1997, where the prisoner's 

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conviction became final before April 24, 1996, would be 

impermissibly retroactive. Even under S 2244(d)(1)'s time 

limitation, would-be petitioners are afforded one full year to 

prepare and file their habeas petitions, and as of April 24, 

1996, have been placed on notice of this time constraint. 

We reject the notion that petitioners whose state court 

proceedings concluded before April 24, 1996, should be 

afforded less than one year with notice. Accordingly, we 

hold that habeas petitions filed on or before April 23, 1997, 

may not be dismissed for failure to comply with 

S 2244(d)(1)'s time limit. 

Additionally, we note that federal inmates who wish to file 

motions to vacate, set aside, or correct their sentences 

under 28 U.S.C. S 2255 must adhere to a one-year period 

of limitation virtually identical to that of S 2244(d)(1). See 

28 U.S.C. S 2255. We recognize that the one-year period of 

limitation under S 2255 is not squarely presented in this 

case. However, for the orderly administration of justice and 

to provide immediate guidance to the district courts, we 

think it imperative that we resolve this issue now. Cf. 

Santana v. United States, 98 F.3d 752, 756 (3d Cir. 1996) 

(holding in a S 2255 case that procedural rule also applies 

to S 2254 petitions). Federal prisoners challenging their 

sentences, no less than state prisoners seeking habeas 

relief, are entitled to one full year with notice to file such 

motions. Thus, S 2255 motions filed on or before April 23, 

1997, may not be dismissed for failure to comply with 

S 2255's one-year period of limitation. 

III. 

Burns, however, presented his petition to prison officials 

for mailing on April 22, 1997, just one day before the 

deadline. The Clerk of the district court received the 

petition on April 28, and docketed the petition asfiled on 

May 5. The district court concluded that Burns' petition 

was filed after April 23, 1997, and dismissed it as untimely 

under S 2244(d)(1). The district court believed it would err 

by applying Houston v. Lack to the filing of Burns' habeas 

petition. We hold that it would not. 

In Houston v. Lack, the United States Supreme Court

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held that pro se prisoners' notices of appeal arefiled at the 

moment of delivery to prison authorities for mailing to the 

district court.3 The Houston Court discussed the unique 

situation of pro se prisoners who cannot ensure that the 

court clerk will receive their notices of appeal within thirty 

days. The Court explained that a prisoner "has no choice 

but to entrust the forwarding of his notice of appeal to 

prison authorities whom he cannot control or supervise and 

who may have every incentive to delay." Id. at 278.

We are persuaded that the same concerns expressed by 

the Court in Houston pertain to filing a pro se prisoner's 

habeas petition. We recognize that no court of appeals has 

held that Houston applies to the filing of a S 2254 petition 

for the purpose of satisfying S 2244(d)(1). Until the 

enactment of S 2244(d), however, prisoners were not

required to meet strict filing deadlines and couldfile a 

habeas petition at any time.4 Applying Houston to the filing 

of habeas petitions was simply unnecessary. 

Since the enactment of S 2244(d), at least one court has 

applied Houston to a motion under S 2244(b)(3) for 

authorization to file a second or successive S 2255 motion. 

In re Sims, 111 F.3d 45 (6th Cir. 1997). In so doing, the 

court stated that "for purposes of the one-year limitation 

periods established by S 2244(d)," a S 2244(b)(3) motion is 

deemed filed on the date that the motion is given to prison 

authorities for mailing. Id. at 47. Additionally, the Peterson 

court generalized that under Houston, the timeliness of 

prisoners' filings is measured from the date such papers 

are handed to prison authorities for mailing, and implied 

that a S 2254 petition would be considered filed when the 

_________________________________________________________________ 

3. In 1993, the Federal Rules of Appellate Procedure were amended to 

reflect the holding of Houston. See Fed. R. App. P. 4(c) advisory 

committee's note. 

4. The passage of time was not completely irrelevant prior to the 

enactment of S 2244(d). Under Rule 9 of the Rules Governing Section 

2254 Cases and the Rules Governing Section 2255 Proceedings, a 

"delayed" petition or motion could be dismissed if the state or the 

government had been prejudiced in its ability to respond due to the 

delay. This, however, is a far cry from the one-year time limit prescribed 

in S 2244(d). 

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petition is handed to prison authorities for mailing. See 

Peterson, 107 F.3d at 93. 

We have applied Houston to various filings of pro se 

prisoners outside the context of habeas corpus. In an 

action under 42 U.S.C. S 1983, we extended Houston to 

apply to the filing of a motion for reconsideration under 

Fed. R. Civ. P. 59(e). Smith v. Evans, 853 F.2d 155 (3d Cir. 

1988). Other courts have applied Houston tofind prisoners' 

S 1983 complaints timely. E.g., Dory v. Ryan, 999 F.2d 679, 

682 (2d Cir. 1993), modified on reh'g, 25 F.3d 81 (2d Cir. 

1994); Garvey v. Vaughn, 993 F.2d 776, 782 (11th Cir. 

1993); Lewis v. Richmond City Police Dept., 947 F.2d 733, 

736 (4th Cir. 1991). Houston has also been applied to 

service of discovery responses, see Faile v. Upjohn Co., 988 

F.2d 985, 988 (9th Cir. 1993), and to a motion for an 

extension of time to correct filing deficiencies regarding in 

forma pauperis status, see McGore v. Wrigglesworth, 114 

F.3d 601, 605 (6th Cir. 1997). 

Many have expressed their concern with the pro se 

prisoner's lack of control over the filing of documents, 

especially as compared to the control other litigants 

maintain, e.g., Faile, 988 F.2d at 988. We share their 

concern. Indeed, as we explained above, the Supreme

Court's holding in Houston was founded on such concerns, 

and are present with equal force where a pro se prisoner 

places his habeas petition in the hands of prison 

authorities for mailing. Once he has done so, he is

completely unable to ensure that the district court will 

receive his petition promptly; he remains entirely at the 

mercy of prison officials. 

IV. 

For these reasons, we hold 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. And 

because we see no reason why federal prisoners should not 

benefit from such a rule, and for the purposes of clarity 

and uniformity, we extend this holding to the filing of 

motions under S 2255.5 Finally, because we conclude that 

_________________________________________________________________ 

5. See supra note 3. 

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Houston v. Lack applies and that Burns' petition was timely 

filed under S 2244(d)(1), we summarily reverse and remand 

for the district court to consider the petition. The petition 

for appointment of counsel is denied as moot. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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