## United States Court of Appeals

FOR THE EIGHTH CIRCUIT

______________ Nos. 97-3639 & 97-3640

______________ Michael Nichols, * * Petitioner-Appellant, * v. * Appeal from the Unite d States 

### * District Court for th e Western Michael Bowersox, * District of Missouri
* Respondent-Appellee. *

___________ Richard L. Crane, * * Petitioner-Appellant, * v. * Appeal from the Unite d States * District Court for th e Western Dave Dormire, * District of Missouri
* Respondent-Appellee. *

___________ Submitted: March 9, 1998 Filed: April 3, 1998

___________

## The HONORABLE MARK W. BENNETT, United States District Judge for the

* 

## Northern District of Iowa, sitting by designation.
2 Before MCMILLIAN and FAGG, Circuit Judges, and BENNETT, District Judge. *

___________ BENNETT, District Judge.

Mi ssouri state inmates Michael Nichols and Richard Crane challeng e the dismissal of their petitions for writs of habeas corpus brough t pursuant to 28 U.S.C. § 2254. The district court, believing it wa s constrained by this court’s decision in Allen v. Dowd , 964 F.2d 745 (8th Cir. ), cert. denied , 506 U.S. 902 (1992), dismissed the petitions a s untimely under 28 U.S.C. § 2244(d)(1). On appea l, we consider whether the “prison mailbox rule”—deeming a pro se prisoner’ s notice of appeal “filed” at the time it is submitted to prison authorities for mailing to th e district c ourt—applies to the filing of a petition for writ of habea s corpus. We conclude that it does, and reverse and remand for proceedings consistent with this opinion.

I . BACKGROUND On Septem

ber 15, 1993, Michael Nichols was convicted in the Circuit Court of Jackson County, Missouri of one count o f first degree murder, one count of first degree assault, and two counts of armed criminal action

. He was sentenced to life in prison without the p ossibility of probation or paro le as well as three lesser concurrent terms of imprisonment. O n Februa ry20, 1996, the Missouri Court of Appeals affirmed Nichols ’ conviction and sentence. On December 3, 1992, Richard Crane was convicted in the Circuit Court of

## Chief Justice Marshall was the first to refer to the writ of habeas corpus as “th e

1 

## grea t writ” in Ex parte Bollman , 8 U.S. (4 Cranch) 75, 96 (1807). By the time Chief Justice Marshall so described it, the writ o f habeas corpus had already enjoyed several centuries of

recognition, dating back at least to the English common law of th e thirtee nthcentury. See, e.g. , Charles D. Forsythe, The Historical Origins of Broa d Federal Habeas Review Reconsidered , 70 N OTRE 

## D AME 

## L. R EV 

## . 1079, 1080 (1995) (“Unfortunately, the writ’s arcane Latin phraseology obscures its historic purpose. A writ of habeas corpus is a civil procedure, directed to a law enforcement authority to contest ‘the l egality of the detention of one in the custody of another.’ The writ i s deeply based in the English common law, dating back at least to the thirteenth century.”) (citations omitted); Emanuel Margolis, Habeas Corpus: The No-Longe r Great Writ , 98 D ICK



## . L. REV 

## . 557, 563 (1994) (“The writ of habeas corpus is traceable to the common law, well before the founding of this nation.”). Several types of habeas corpus writs had developed at least by the end of the reign of Edward I in 1307, but an early reference to such a writ can be traced back to Henry II’s Assize of Clarendon in 1166, which “‘made great changes in the administration of the criminal law’ and, i n part, ordered sheriffs to bring certain pr isoners before the justices.” Id. at 1090 (citing 1 S IR 

## F RE DERICK 

## P OLLOCK 

## & FREDERICK MAITLAND 

## , T HE 

## H ISTORY OF 

## E NGLISH 

## LAW 

## 137 (2 d ed. 1968). Although the writ of habeas corpus has a long history in th e common law, and, in this country, the common law has been used to determine it s scope, it was not until 1867 that Congress extended federal habeas jurisdiction to state prisoner s by statutory enactment. Id. at 1087-88; Margolis, The No-Longer Grea t Writ , 98 D ICK



## . L. R EV



## . at 564. Although the American history of the Great Writ has been rich, the grant of a writ of habeas corpus to a state p risoner is extraordinarily rare, as it should be if

our dual system of state and federal courts is to function with proper respectfor the state criminal adjudications. Nonetheless, part of the respect due our criminal justice system cannot help bu t be the result of the power of courts to continue constitutional review of convictions, even after direct appeals have run their course

. (continued...) 3 Jaspe r County, Missouri of one count of second degree burglary and on e count of s tealing. Crane was sentenced to concurrent prison terms o f twent yyears and one year respectively for these crimes. The Missour i Court of Appeals affirmed Crane’s conviction and sentence on June 28, 1994

. Afte r exhausting their state post-conviction remedies, Nichols an d Crane, both proceeding pro se , prepared petitions for writs of habea s corpus, the “Great Writ” , 1

## (...continued)

1 

## See, e .g. , 1 W ILLIAM 

## B LACKSTONE 

## , C OMMENTARIES 

## 130-31 (1765) (“Of grea t importance to the public is the pre servation of this personal liberty: for if once it were left in the power of any . . . magistrate to imprison arbitrarily whomever he or hi s officers though t proper . . . there would soon be an end of all other rights an d immunities.”). Section 2244(d) provides, in pertinent part, that: 2 

## (1) A 1- year period of limitation shall apply to a n app licationfor a writ of habeas corpus by a person i n cust ody pursuant to the judgment of a State court. Th e limitation period shall run from the latest of— (A) the d ate on which the judgment became final by th e conclusion of

direct review or the expiration of the time for seeking such review; . . . (2) The time during which a properly filed application fo r State post-conviction or oth er collateral review with respect to the pe rtinent judgment or claim is pending shall not b e countedtoward any period of limitation under thi s subsection. 28 U.S.C. § 2244(d).
4 pursuant to 28 U.S.C. § 2254. Nichols and Crane signed their petitions on April 20 and April 21, 1997, respectively. Alt hough the record is silent regardi ng the date the petitions were actually mailed, uncontradicte d evidence in the record reflects that Nichols and Crane submitted thei r petit ions to their respective prison mail systems on the date that th e petitions were signed. The clerk of the distric t court received and filed Nichols’ petition on April 28, 1997. Crane’s petition was received an d filed by the clerk on April 29, 1997. The respondents moved the district court to dismiss both petition s
on the ground that they were untimely filed. Specifically, the respondent s argue d that pursuant to 28 U.S.C. § 2244(d)(1), Nichols and Crane wer e required to file their habeas petitions on or before April 23, 1997. 2

## As a n initial matter, the respondents assert that the district court improvidentl y

3 

## granted the cer

tificates of appealability because the dismissal for untimeliness did not implicat e a matter of constitutional dimension. Accordingly, respondents argue , Nicho ls and Crane could not have “made a substantial showing of the denial of a constitutional right” as required by 28 U.S.C. § 2253(c)(2). On this basis, th e respondents assert that this court lacks jurisdiction to consider the appeals. We hold this argument to be without merit. At the outset, we note this court’s earlier conclusion that a district court judge possesses theauthority to issue certificates of appealability under § 2253(c) and F ED



## . R. C IV



## . P. 22(b), Tiedeman v. Benson , 122 F.3d 518, 522 (8th Cir. 1997), so long as the j udge finds a substantial showing of the denial of a federal constitutional right

. Cox v. Norris , 133 F.3d 565, 569 (8th C ir. 1997). A substantial showing is a showing that issues are debatable among reasonable jurists, a court could resolve the issue s differe ntly, or the issues deserve further proceedings. Cox , 133 F.3d at 569 (citin g Flieger v. Delo , 16 F.3d 878, 882-83 (8th Cir.), cert. denied , 513 U.S. 946 (1994)

. (continued...) 5 In considering the motions to dismiss, the district court firs t obs erved that under the “prison mailbox rule” established in Houston v
. Lack , 487 U.S. 266 (1988), a notice of appeal from the denial of federal habeas corpus relief was timely filed when a pro se inmate deposited the notice to prison officials for mailing prior to the expiration of th e applic able filing deadline. The district court then considered thi s court’s decision in A llen v. Dowd , 964 F.2d 745, 746 (8th Cir. 1992), and

conc luded that in that case this court “refused to extend the priso n mailbox rule to the filing of habeas corpus petitions.” (App. at 48). Th e district court noted that Allen was decided befo re the addition of the one year t ime limitation in 28 U.S.C. § 2244(d)(1), but nevertheles s reluctantly concludedthat it was constrained by Allen from extending the mailbox rule to pro se petitions for habeas corpus relief. The court foun d that Nichols’ and Crane’s petitions were filed after April 23, 1997, and accordingly, dismissed both petitions as untimely under § 2244(d)(1). The district court granted Nichols and Crane certificates o f appealabilityon the issue of “whether the prison mailbox rule announced in Houston v. Lack , 487 U.S. 266 (1988), should now apply to the filing of habeas corpus petitions.” Nichols and 3

## (...continued)

3 

## Here, the requisite “substantial showing” is clear. If, as Nichols and Crane contend, the prison ma ilbox rule extends to a pro se prisoner’s filing of a petition for writ o f habeas corpus, the district court’s dismissal of the petitions on procedural ground s fo reclosed their constitutional right to petition for the writs. See U.S. C ONST 

## ., art. I , § 9, cl.2. Moreover, as this court stated in Tiedeman , if a certificate of appealability is regular on its face and not procedurally def ective, the “appeal proceeds in this Court in the ord inary course. If we believed that the issues were without substance, w e would simp ly summarily affirm the judgment, instead of taking the intermediate an d wholly unnecessary step of vacating the certificate of appealability.” Tiedeman , 122 F.3d at 522.
6 Crane filed timely notices of appeal to this court, and the cases wer e consolidated for disposition.

II. STANDARD OF REVIEW Nichols a nd Crane contend that the dismissal of their petitions was erroneous on two alternative grounds. First, th ey contend that the prison mailbox rule announced in Houston v. Lack should be extended to a pro se inmate’s filing of a federal habeas petition. Nichols and Crane asser t that such an extension is warranted by the newly enacted one-year period of lim itation for federal habeas petitions contained in 28 U.S.C

. § 2244(d)(1). Alternatively, Nichols and Crane assert that

## O f course this is not to say that the pursuit of habeas relief was utterl y

4



## unr estrained. Rule 9(a) of the Rules Governing Section 2254 Cases specificall y addressed the issue of “delayed petitions”:

A petit ion may be dismissed if it appears that the state o f which the respondent is an offi cer has been prejudiced in its ability to respo nd to the petition by delay in its filing unless the petitioner sho ws that it is based on grounds of which he could not have had knowledge by the ex ercise of reasonable diligence before the circumstances prejudicial to the stat e occurred. R ULES 

## G OVERNING 

## S ECTION 

## 2254 C ASES 

## , R. 9(a).
7 even if the prison ma ilbox rule does not apply, the doctrine of equitable tolling should stall the running of the one-year limitation period because “ext raordinarycircumstances” beyond their control prevented them fro m filing their habeas petitions. We review the district court’s dismissal of the petitions for habeas corpus relief de nov o . United States v. Beck , 122 F.3d 676, 677 (8t h Cir. 1997); Reese v. Delo , 94 F.3d 1177, 1181 (8th Cir

. 1996), cert. denied sub nom. , Reese v. Bowersox , 117 S. Ct. 242 1 (1997); United States v. Duke , 50 F.3d 571, 576 (8th Cir.), cert. denied , 116 S. Ct. 224 (1995).

III. LEGAL ANALYSIS Section 2244(d) went into effect on April 24, 1996, when th e Antiterrorism and Effective Death Penalty Act (“ AEDPA”) of 1996 was signed into law. This subse ction amends 28 U.S.C. § 2244 by imposing a one-year time limitation following the conclusion of state court review for th e filing of § 2254 habeas petitions. The one-year limitation dramatically reduced a state inmate’s window of opportunity to pursue habeas relie f because prior to its enactment, habeas petitions could be filed many years after the conclusion of state post-conviction proceedings. 4

## Rule 4 of the Federal Rules of Appellate Procedure was amended to reflect the

5 

## decision in Houston v. Lack. See F ED



## . R. A PP



## . P. 4(c). 8 Nichols and Crane were convicted and sentenced prior to the ena ctment of the AEDPA, and the parties—as well as the district court—have assumed that pursuant to § 2244(d)(1), the deadline for these prisoners to fil e their petitions was April 23, 1997. At oral argument, the respondent s challenged the distri ct court’s calculation of the filing deadline. This argumen t was not raised below, and we will not address it for the firs t time on appeal. See Colonial Ins. Co. v. Spirco Envtl., Inc. , ___ F.3 d ___,___, 1998 WL 73076 *1 (8th Cir. Feb. 24, 199 8); United States Dep’t of Labor v. Rapid Robert’s Inc. , 130 F.3d 345, 348 (8th Cir. 1997). As state d above, Nichols’ petition was signed and submitted to the prison mail syste m
on April 21, 1997, and filed by the clerk on April 28, 1997. Crane’ s petition was signed and submitted on April 20, 1997, and filed nine days later, on April 29. If, as Nichols and Crane contend, their petitions wer e “filed” for purposes of § 2244(d)(1) on the date they were deposited into the prison mail system, the petitions were timely filed.

A. Origin Of The Prison Mailbox Rule We begin our inquiry with the UnitedStates Supreme Court’s decision in Houston v. Lack , 4 87 U.S. 266 (1988). In that case, the Supreme Court held that a pro se state inmate’s notice of appeal from the dismissal of his habeas petition was filed at the moment he submitted the notice t o prison officials for mailing. Houston , 487 U.S. at 277. In adopting what 5 has come to be known as the “prison mailbox

### 9

rule,” the Houston Court emphasized the peculiar obstacles facing pro se prisoner litigants:

The situation of prisoners seeking to appea l witho ut the aid of counsel is unique. Suc h prisoners cannot take the s teps other litigants can take to monitor the processing of their notices of appeal and to ensure that the court clerk receives and stamps their notices of appeal before the 30

- da ydeadline. Unlike other litigants, pro s e pri soners cannot personally travel to th e courthouse to see that the notice is stampe d “filed” or to establish the date on which the court received the notice. Other litigants may choose to ent rust their appeals to the vagaries of the mai l and the clerk’s process for stamping incomin g papers, but only the pro se prisoner is forced t o do s o by his situation. . . . Worse, the pro s e priso ner has no choice but to entrust th e forwarding of his notice of appeal to priso n authorities whom he cannot control or supervise and who may have every incentive to delay. Id. at 270-72. Mindful that many lower courts had rejected general application o f the mailbox rule to determine when a notice of a ppeal was filed, the Court explai ned that policy concerns associated with pro se prisoner filing s warranted application of the rule to the filing of these litigants’ notice s of appeal. The pro se prisoner’s lack of control is of particular concern

. As the Court emphasized, a pro se prisoner’s diligence in depositing his notice of appeal to prison authorities in advance of the filing deadline provides no assurance that the document will ultimately be “filed” on time

. Id. at

### 10

271. Moreover, as a result of confinement, the pro se inmate has virtuall y no means by which to track the whereabouts of his notice:

Unskilled in law, unaided by counsel, and unable to leave the prison, [the pris oner’s] control over the processing of his notice ne cessarily ceases as soon as he hands it over to the only public officials to who mhe has access—the prison authorities—and th e only information he will li kely have is the date he delivered the notice to those prison authoritie s and the date ultimately stamped on his notice. Id. The Court went on to distinguish the pro se inmate from the average civil litigant who ch ooses to entrust the mail system to promptly deliver a notice of appeal:

The pro se prisoner does not anonymously drop hi s not ice of appeal in a public mailbox--he hands i t over to prison authorities who have well-developed procedures for recording th e date and time at which they receive papers for mai ling and who can readily dis pute a prisoner’s assertions that he delivere d the paper on a different date. Id. at 27 5. In this sense, the general concern that application of a mailbox rule would spawn disputes and uncertainty as to when a litigan t mailed t he notice is alleviated in the case of a pro se inmate becaus e prison authorities—via the prison mail log—will have access to th e pertinent information. Id. In this context, the prison mailbox rule is a “bright-line rule, not an uncertain one.” Id.

B. Application Of The Rule Since Houston The respondents assert that the mail box rule announced in Houston is inapplicable to the filing of petitions for habeas corpus relief because the Court only endorsed the rule’s applicability to the filing of a notice of appeal. We understand

### 11

the gravamen of this argument to be that the prison mailbox rule should no t be extended to other pro se filings. This argument is unavailing. As thi s court observed in Miller v. Benson , 51 F.3d 166, 169, n.2 (8th Cir. 1995), other circuits have extended the rule in Houston to pro se prisoner filing s outside t he habeas context. Miller , 51 F.3d at 169, n.2 (citing Unite d States v. Moore , 24 F.3d 624 (4th Cir. 1994) (extending mailbox rule t o notice of appeal from a criminal case); Dory v. Ryan , 999 F.2d 679 (2d Cir

. 1993) (applying rule to § 1983 complaint); Thomp son v. Raspberry , 993 F.2d 513, 515 (5th Cir. 1993) (per curiam) (extending rule to the filing o f obje ctions to magistrate judge’s report and recommendation); Garvey v

. Vaughn , 9 93 F.2d 776, 783 (11th Cir. 1993) (applying rule to § 198 3 complaints as well as complaints brought pursuant to the Federal Tort Clai m Act); Faile v. Upjohn Co., 988 F.2d 985, 988-89 (9th Cir. 1993) (applying rule to all pro se pr isoner filings); Simmons v. Ghent , 970 F.2d 392, 393 (7th Cir. 1992) (exte nding rule to Rule 59(e) motions); Lewis v. Richmond City Police Dep’t , 947 F.2d 733, 735-36 (4th Cir. 1991) (per curiam ) (applying rule to civil complaints); Dunn v. White , 880 F.2d 1188, 119 0 (10th Cir. 1989), cert. denied , 493 U.S. 1059 (1 990) (applying rule to the filing of objections to magistrate judge’s report and recommendation)); se e also , McGore v. Wrigglesworth , 114 F.3d 601, 605 (6th Cir. 1997) (applying rule to a motion for an extension of time to correct deficiencie s concerning in forma pauperis status); Smith v. Evans , 853 F.2d 155 (3d Cir

. 1988) (extending rule to the filing of a motion for reconsideratio n pursuant to F ED . R. C IV . P. 59(e)). Our circuit has also extended the prison mailbox rule to pro s e filings outside the habeas context. In Hamm v. Moore , 984 F.2d 890, 892 (8th Cir. 1992), this court revisited the policies set forth in Houston , and concluded that the prison mailbox rule shoul d be extended to a pro se filing of a notice of appeal in a § 1983 action. Hamm ,

### 12

984 F. 2d at 892. Three years later, this court again considered th e propriety of extending the prison mailbox rule—t his time in the context of

a pro se pris oner’s motion for reconsideration pursuant to F ED . R. C IV . P. 59(e). United States v. Duke , 50 F.3d 571, 575 (8th Cir. 1995). In Duke this court stated:

We bel ieve that the rationale of Houston and th e new Rule 4(c) applies with equal force to a motion whi ch, under Rule 4(a)(4), tolls the time for th e filing of a notice of appeal. . . Thus, we hol d that Duke’s motion for reconsideration should b e deemed timely served if it was delivered to prison aut horities for mailing within the ten-day tim e period of F ED . R. C IV . P. 59(e) and F ED . R. A PP . P
. 4(a)(4)(F). Id. Compare Burgs v. Johnson County, Iowa , 79 F.3d 701, 702 (8th Cir. 1996 ) (concluding that Burg s was not entitled to the benefit of Houston because he was represented by counsel and thus in the same position as othe r litigants who rely ontheir attorneys to file a timely notice of appeal).

C. Application Of The Rule To Habeas Petitions The respo ndents contend that even if the prison mailbox rule i s properlyapplied to certain pro se inmate filings, the rules governin g habeas procedure prohibit its application to the filing of habea s petitio ns. In support of this contention, the respondents direct ou r attention to Rule 3 o f the Rules Governing Section 2254 Cases. Rule 3(a) provides that a petit ion for writ of habeas corpus relief “shall be filed in the offic e of the clerk of the district court.” R ULES G OVERNING S ECTIO N 2254 C ASES , R.3(a). Ru le 3(b) sets forth the duties of the clerk of court pertai ning to habeas petitions, and provides, in pertinent part, a s follows:

### 13 (b ) Filing and service. Upon receipt of th e pet ition and the filing fee, or an order grantin g leave to the petitioner to proceed in form a pauperis, and having ascertained that the petition appears on its face to comply with rules 2 and 3 , the clerk of court shall file the petition. . . . R ULES G OVERNING S ECTION 22 54 C ASES , R. 3(b). In the respondents’ view, Rule 3 pla inlydefines the moment at which a habeas petition is filed an d ther efore, by implication, prohibits application of the prison mailbo x rule. While w e agree that Rule 3(a) prescribes the procedures by which a habeas li tigant is to file his or her petition, we reject the assertio n that R ule 3 defines the moment when a habeas petition is “filed” fo r purposes of the one-year time limitation set forth in § 2244(d)(1). In ou r view such a reading begs the question presented to us today, and ignores the important policy concerns raised by the Court in Houston . Obviously, incarcerated pro se l itigants are unable to journey to the district court clerk’s office to fil e their habeas petitions. Instead, they must submit their petitions to prison authorities for forwarding to the clerk. We hol d that there is no mean ingful distinction between the situation of a pro se inmate seeking to file a notice of appeal from the dismissal of a habeas petition and that of a pro se inmate seeking to file a habeas petition in the first instance—both must rely upon the dilig ence of prison authorities to forward their documents for filing. The respondents assert that th e Rules Governing Section 2254 Cases contemplate the situation of a n incarcerated litigant and by omission, reject the necessity of the prison mailbox rule. Respon dents’ observation is only partially correct because although the Rules Governing Section 2254 Cases must, by their nature , contemplate the situation of an incarcerated litigant, they do not directl y address the situation of an incarcerated pro

### 14

se liti gant. It is this combination of obstacles that gave rise to th e policy concerns expressed in Houston and that concern us today. Respondents argue that even if the p rison mailbox rule is applied to the petitioners’ filings, their petitions were s till untimely because they were not submitted with the proper in forma paup eris paperwork as required by Rule 3(b ). We disagree. A standing order of the district cour t spec ificallygrants incarcerated petitioners with provisional leave t o proceed in forma paup eris at the time their petitions are received by the court clerk and we se e no reason to deny Nichols and Crane the benefit of this local rule. As the district court observed, the petitions wer e considered filed on the date they were received by the clerk despite the absence o f the in forma pauperis documents. If the prison mailbox rul e applie s, the petitions would have been sufficiently complete under th e district court’s stan ding order on the date they were submitted to prison authorities for mailing. Although the responden ts’ argument on this point is nebulous at best, to the extent they invite us to consider the propriet y of the standing order, we decline the invitation . The respondents did not chal lenge the district court’s standing order below, and we will no t entertain such a challenge for the first time on appeal. See Colonial Ins

. Co. , ___ F.3d at ___, 1998 WL 73076 at *1 (8th Cir. Feb. 24, 1998). The respondents also emphasi ze that unlike F ED . R. C IV . P. 4(c), Rule 3 has not been amended to incorporate the prison mailbox rule. On e interpretation of this is, as respondents sugges t, that the prison mailbox rule was not intended to apply to the filing of habeas petitions. A n equall yplausible interpretation is that no amendment to the Rule s GoverningSection 2254 Cases was necessary prior to the enactment of the AEDPAbecause no statutory time limitations were imposed upon the filing of habeas petitions. Nothing in Houston indicat es that the prison mailbox rule is strictly

### 15

reserved for notices of appeal, and we decline to engage in inferentia l guesswork to reach such a conclusion. Finally, respondents contend that in Allen v. Dowd , 964 F.2d 74 5 (8th Cir.), cert. denied , 506 U.S. 902 (1992), this court rejected application of the prison mailbox rule to the filing of habeas petitions. In Allen , this court considered the plight of a petitioner whose § 2254 habea s petition was dismissed on the ground that he didnot satisfy the statute’s “in custody” requirement. Allen , 964 F.2d at 745. The district cour t concluded that Allen’s petition was not filed until eight days after h e completed the challenged state prison sentence. Allen had completed his first sentence and was serving his second consecutive prison sentence. Hi s first conviction and sentence were the subject of his habeas petition

. Accordingly, Allen was no longer “in custody”—fo r purposes of the relevant conviction and sentence—on the date his petition was filed. On appeal , Allen a rgued that his earlier conviction affected the sentence he wa s presently serving to the extent that it delayed his release date. Relying upon the ru le set forth in Maleng v. Cook , 490 U.S. 488 (1989) (pe r curiam), Allen asserted that he was entitled to challenge the sentence for whic h he was currently “in custody” on the ground that the allegedl y invalid prior convict ion, on which the sentence had expired, enhanced his current sentence. Allen , 964 F.2d at 746 (citin g Maleng , 490 U.S. at 493- 94). This court rejected Allen’s contenti on, finding that his reliance on Malengwas misplaced:

[Allen’s] argument overlooks the fact that nowhere in his petition does he challenge his late r con viction. Allen expressly restricts himself t o challenging the 1982 conviction for receivin g stolen property. In Taylor v. Armontrout , 877 F.2d 726 (9th Cir. 1989) (per curiam), we

### 16

affirm ed a dismissal where the petitioner had served the sentenc e challenged in his habeas petition and had failedto assert in his petition an attack against a current sentence, even thoug h he argued on appeal that the earlier conviction resulted in an enhancement of his later sentence.

Id. Alth ough Allen was not allowed to proceed under Maleng , this cour t observed that he was entitled to file a new petition properly attacking th e conviction for which he was presently incarcerated. Id. Allen also argued that he deposited his petition for mailing wit h pri son authorities approximately five days before his release an d therefore, under the rule espoused in Houston , the district court should have de emed his petition filed on the date of mailing. The Allen cour t rejected this argument stating:

Allen’s argument fails, for [ Houston ] is limited to not ices of appeal which have a 30-day deadlin e under 28 U.S.C.A. § 2107(a) and F ED . R. C IV . P
. 4(a)(1). This case does not concern a notice o f app eal or other filing with a 30-day deadline

. Moreover, this court has recently held that filing doe s not occur in a habeas case until th e pet itioner has either paid the filing fee or bee n granted leave to proceed in forma pauperis

. Weaver v. P ung , 925 F.2d 1097, 1099 (8th Cir.), cert
. denied , 502 U.S. 828 (1991) . Allen was not granted lea ve to proceed in forma pauperis until June 13 , 1990. We thus hold that th e district court did not err in holding that Allen w as not “in custody” when his petition was filed. Id. (emphasis added) (some internal citations om itted). Seizing upon this language, respondents assert that this court has already determined that the prison mailbox rule does not apply to petitions for habeas relief. We are, of course, bound by Eighth Circuit precedent, and as thi s court has repeatedly observed, one panel may not overrule another panel’s decision. See, e.g. ,

## Dicta is a common abbreviation for obiter dicta , and is defined as “words of an

6 

## op inionthat are entirely unnecessary for the decision of the case.” B LACK 

## ’ S 

## LA W 

## D IC TIONARY 

## 1072 (6th ed. 1990). Examples of dicta include a “remark made, o r opinion expressed, by a judge, in his decision upon a cause, ‘by the way,’ that is , incidentally or collaterally, and not directly upon the question before him, or upon a point not necessarily in volved in the determination of the cause, or introduced by way of illustration, or analogy or a rgument.” Id. , see also King v. Erickson , 89 F.3d 1575, 1582 (Fed. Cir. 1996), rev’d on other grounds sub nom. LaChance v. Erickson , 118 S. Ct. 753 (quoting same). 17 United States v. Reynolds , 116 F.3d 328, 329 (8th Cir. 1997); United State s

v. Prior , 107 F.3d 654, 660 (8th Cir. 1997); United States v. Dittrich , 10 0 F.3d 84, 87 (8th Cir. 1996), cert. denied , 117 S . Ct. 1454 (1997); Jenkins

v. St ate of Missouri , 73 F.3d 201, 205 (8th Cir. 1996). Only the cour t sitting en banc may e ffectuate such a change. United States v. Bass , 121 F.3d 1218, 1222 (8th Cir. 1997); Smith v. Copeland , 87 F.3d 265, 269 (8th Cir. 1996 ). However, we are equally mindful that we are not bound b y another panel’s dicta

. Wilson v. Zoellner , 114 F.3d 713, 721 n.4 (8t h 6 Cir. 1997); see also , Boyer v. County of Washington , 971 F.2d 100, 102 (8t h Cir. 1992) (per curiam) (noting that statement in prior case “was no t necessary to decide the issue in the case and is not binding authorit y [here]”), cert. denied sub nom. Boyer v. DeClue , 508 U.S. 974 (1993); John Morrell & Co. v. Local Union 304A , 913 F.2d 544, 550 (8th Cir. 1990 ) (observing that panel need not follow prior panel’s dicta ), cert. denied , 500 U.S. 905 (1991). We have scrutinized the holding in A llen , and conclude that although it may be a close question, the Allen court’s observations regarding the inapplicability of the prison mailbox rule are dicta because they were “no t

necessa ryto decide the issue in the case.” See Boyer , 971 F.2d at 102

. The holding in Allen was premised on the fact th at Allen’s habeas petition failed to make any reference to the conviction for which

## We are puzzled by the dissent’s assertion that we have engaged in “lip service”

7 

## and “t ransparent rule-making,” have “by-passed circuit precedent, the en banc court, and C ongress,” and have made an “end run around Allen .” To the contrary, w e acknowledge that if the targeted passage in Allen is not obiter dictum , only the court sitt ing en banc has the power to overturn Allen and arrive at the conclusion we reach today. F urthermore, while the dissent never addresses the threshold issue of whether the targe ted passage in Allen is or is not dictum , we have explained our reasons fo r con cluding that Allen’s observations regarding the prison mailbox rule were merel y incidental to its holding, and therefore not binding upon this panel. 18 he was presently incarcerated. For this reason, Allen was not “in custody ” for purpos es of challenging the prior conviction or its effect on hi s present sentence. Even if Allen’s petition had been deemed “filed” on the date he submitted it to prison authorities for mailing, Allen would have failed, as a practical matter, to meet the “in custody” requirement for th e challenged conviction and sentence because that sentence expired five days aft er he mailed the petition. Without referencing his second sentence , Allen confined himself to challenging a sentence that was completed before any ha beas relief could be granted. See Allen , 964 F.2d at 746

. Consequen tly, we are not bound by the panel decision in Allen

. Se e 7 Wislon , 114 F.3d at 721 n.4; Boyer , 971 F.2d at 102. Although we have concluded that Allen’s reference to the priso n mailbox rule was not essential to the holding in that case, we note that Allen was decided well before the enactment of the filing deadline no w imposed on habeas pet itions. This is particularly significant because at the time Allen

was decided, pro se prisoners wer e not in jeopardy of being foreclosed from pursuing habeas relief if their petitions were not receive d by a certain date. Put simply, application of t he prison mailbox rule was simply unnecessary. The advent of section 2244( d)(1) dramatically changed this. Under the present statutory landscape, pro se prisoners must heavil y rely upon

### 19

the diligence of prison authorities to mail their habeas petitions in a timely fashion. We are persuaded that the important concerns expressed by the S upreme Court in Houston apply with equal force to a pro se prisoner’s filing of

a petitio n for writ of habeas corpus. As the Fourth Circuit Court o f Appeals stated in Lewis v. Richmond City Police Dep’t , 947 F.2d 733 (4th Cir. 1991): Fundamentally, the rule in Houston is a rule o f

equal treatment; it seeks t o ensure that imprisoned lit igants are not disadvantaged by delays whic h other litigants might readily overcome. It set s forth a bright line rule—that filing occurs whe n the petitioner delivers his pleading to priso n authorities for forwarding to the court clerk.

Lew is , 947 F.2d at 735 (extending prison mailbox rule to a § 198 3 compl aint). In our view, the proper focus is upon the pro se inmate’ s lack of control over his petition once he has deposited it with priso n authorities for maili ng to the clerk of court. In the context of a habeas petiti on controlled by the time restraints contained in 28 U.S.C

. § 224 4(d)(1), the pro se inmate’s lack of control is particularl y compelling because as with a notice of appeal, if the inmate’s documents

are not timely filed, the inmate is foreclosed from pursuing furthe r reli ef. As explained above, this conclusion is not contrary to thi s
cou rt’s ruling in Allen v. Dowd because at the time that case wa s considered, habeas petitioners were constrained only by the prejudicia l concerns addressed in Rule 9(a) of the Rules Gov erning Section 2254 Cases. See also Miller v. Benson , 51 F.3d 166, 169 n.2 (8th Cir. 1995 ) (referencing the policy arguments set forth in Houston and noting “[a] goo d argument can be made for extending the rule in Houston v. Lack to filings other than notices of appeal.”). We observe that at least one of our sister circuits has expressl y extended the prison mailbox rule to the filing o f habeas petitions. Burns v. Morton , 134 F.3d 109,

## The respondents cited the district court opinion, Burns v. Morton , 970 F. Supp

.

8 

## 373 (D.N.J. 1997), in support of their contention that the prison mailbox rule i s inapplicable to habeas petitions. We note that the district court’s deci sion was reversed after the submission of briefs in this consolidated appeal. 20 113 (3d Cir. 1998). In that case, the petitioner (Burns) submitted his 8 petition for a writ of habeas corpus under 28 U.S.C. § 2254 to priso n authorities one day b efore the expiration of the filing deadline. Id. at 110. The clerk of court did not receive Burn’s petition until five days after the deadline. Id. The district court declined to apply the prison mailbox rule, and subsequently dismissed the petition as untimely. The Court of Appeals for the Third Circuit reversed, holding that a pro se inmate’s habeas petition is deemed filed at the moment the inmate submits it to prison authorities for mailing to the district court. Id. at 1 13. In reaching this conclusion, the Burns court emphasized th e obstacles—particularly the lack of control—confronting pro se inmates:

Man yhave expressed their concern with the pro s e pr isoner’s lack of control over the filing o f documents, especially as compared to the contro l oth er litigants maintain, e.g. Faile [v. UpJoh n Co. , 988 F.2d 985, 988 (9th Cir. 1993)]. We share their concern . . . [The Su preme Court’s holding in Hou ston ] was founded on such concerns, and ar e presen t with equal force where a pro se prisone r pla ces his habeas petition in the hands of priso n authorities for mailing. Once he has done so, h e is co mpletely unable to ensure that the distric t court will receive his petition promptly; h e remains entirely at the mercy of prison officials. Id. Two other cases, also cited in Burns , warrant mentioning. Although the Sixth Circuit Court of Appeals has yet to address the precise issu e raised here, it has

### 21

applied the prison ma ilbox rule to a motion made pursuant to § 2244(b)(3) for authorization to file a second or successive motion under 28 U.S.C

. § 2 255. In re Sims , 111 F.3d 45, 47 (6th Cir. 1997) (stating that “fo r purposes of the one-y ear limitations periods established by § 2244(d) and § 2255, on the date that the § 2244(b)(3) motion is given to priso n author ities for mailing and the prisoner has satisfied the verificatio n req uirements of F ED . R. A PP . P. 25(a)(2)(C).”); accord United States v

. Dors ey , ___F. Supp.___,___, 1998 WL 5947, *3-4 (D. Md. Jan. 6, 1998 ) (applying prison mailbox rule to § 2255 motion). Similarly, in Peterson

v. Demskie , 107 F.3d 92, 93 (2d Cir. 1997), the court appeared b y implication to presume that the timeliness of a pro se prisoner’s filing would be determined from the date the prisoner submitted the document to prison authorities for mailing. See Peterson , 107 F.3d at 93. Aside from Burns v. Morton , 970 F. Supp. 373 (D.N.J. 1997), whi ch has subsequentlybeen reversed, the court has located no published decisions rejecting application of the prison mailbox rule to the filing of a habeas petition. In United States ex rel. Barnes v. Gilmore , ___ F. Supp. ___,

___, 1997 WL 797751 (N.D. Ill. Dec. 29, 1997), the district court, in an order written by Judg e Shadur, considered the applicability of the prison mailbox rule to a § 2254 petition and concluded that the rule should b e applied to habeas cases in the district court as well as in the court of appeals

. Judge Shadur discussed at length the unreported decision i n United States ex rel. Banks v. Barnett , 1997 WL 786666 (N.D. Ill. Dec. 15, 1997), and concluded that the Barnett court’s refusal to apply the prison mailbox rule to § 2254 petitions was a result of that court’s failure to “follow Houston to its logical end.” Gilmore , ___ F. Supp. at ___, 1997 WL 797751 *4 (N.D. Ill. Dec. 29, 1997). Judge Shadur observed, inter alia , that § 2244(d)(1)’s one-year filing deadline presented no

### 22

obstacle to the application of the prison mailbox rule:

The principal contention [for not applying th e prison mailbox rule to § 22 54 petitions because the filing deadline is one year as opposed to 30 days] that a prisoner assertedly doesn’t have much nee d for the benefit of the mailbox rule . . . ignores the basic nature of every s tatute of limitations as a bright-line rule on which a litigant is entitled to r ely: Nothing requires an Illinois persona l inj uryplaintiff (for example) to enter th e cou rthouse before the second anniversary of th e tort ious event that harmed him or her, althoug h even one day beyond that is as fatal on limitations grounds as a ten-year delay in bringing suit. Id. Emphasizing the policy concerns relevant to a pro se prisoner’ s sit uation, the Gilmore court concluded that the prison mailbox rule wa s equally applicable to petitions for habeas relief. Id. ; accord Parker v. Bowersox , 975 F. Supp. 1251, 1253 (W.D. Mo. 1997 ) (applying prison mailbox rule to petition for habeas relief); Hughes v. Irwin , 967 F. Supp. 775, 77 8 (E.D.N.Y. 1997) (observing that pro se inmate’s habeas petition was deemed filed when he delivered it to prison officials).

IV. CONCLUSION We are p ersuaded that the one-year filing deadline contained in 2 8 U.S.C. § 2244(d)(1) h as brought the concerns expressed in Houston to bear upon a pro se inmate attempting to file a petition for habeas corpu s relief. We therefore hold that a pro se prisoner’s petition for writ of habeas corpus is deemed filed at the moment the prisoner submits it t o prison authorities for mailing to the clerk of court. There i s uncontradicted evidence in the record that the p etitioners submitted their habeas petitions to prison authorities days before the April 23, 199 7 filing deadline.

## In light of our holding and conc lusion that the petitions were timely filed, we need

9 

## not addr ess the issue of whether the doctrine of equitable tolling applies to the tim e limitation set forth in 28 U.S.C. § 2244(d)(1). We express no opinion on this issue. 23 Accor dingly, we hold that the petitions were timely filed. Th e 9 decision of the district court is reversed, and the causes are remanded fo r further proceedings consistent with this opinion.
FAGG, Circuit Judge, dissenting.
After my colleagues give lip service to our well-established rule "that one panel may not overrule another panel's decision," they overrule the panel's decision in Allen v. Dowd , 964 F.2d 745 (8th Cir. 1992), b y extending the prison mailbox rule annou nced in Houston v. Lack , 487 U.S. 266, 276 (1988), to habeas petitions filed by pro se prison inmates. Contrary to my colleagues view, until the Supreme Court or our en banc court holds otherwise, see Patterson v. Tenet Healthcare, Inc. , 113 F.3d 832, 838 (8th Cir. 1997); Smith v. Copeland , 87 F.3d 265, 2 69 (8th Cir. 1996), Allenmakes clear that in this circuit the prison mailbox rule "is limited t o notices of appeal." Allen , 964 F.2d at 746.
Additionally, my colleagues' transparent rule-making end run around Allenis contrary to our decision in Weaver v. Pung , 925 F.2d 1097, 1099 (8th Cir. 1991), (unlike the prison mail room serving as the clerk of court for the filing of a notice of appeal, a filing does not occur in a habeas case until the clerk receives th e petition and the filing fee or an order granting leave to proceed in forma pauperis). I believe my colleagues have also trespassed on

Congress's turf by effectively altering Rule 3(b) of the Rules Governing Section 2254 Cases in the Un ited States District Courts which governs the filing of habeas corpus petitions. See id. Unlik e Congress's amendment to Federal Rule of Appellate Procedure 4(c) to reflect the decision in Houston v. Lack ,

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Congress has n either rewritten the filing requirements for habeas petitions nor incorporated the prison mailbox rule in Rule 3(b).

All in all, my colleagues have bypassed circuit precedent, the en banc court, and Congress. Withou t doubt, the courts of appeals' decisions arou nd the country show that good arguments can be made "for extending the rule in Houston v. Lack

to filings other than notices of appeal," see Miller v. Benson , 51 F.3d 166, 169 n.2 (8th Cir. 1995), but in this circuit, the extension of the prison mailbox rule to pro se habeas filings by stat e prisoners is within the domain of the en ba nc court, not this panel. I thus decline to join the panel's opinion. For my part, I would follow Allen , reject Nichols's and Crane's habeas petitions, and request en banc review.

A true copy.

Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT