United States Court of Appeals

FOR THE EIGHTH CIRCUIT

______________

Nos. 97-3639 & 97-3640

______________

Michael Nichols, *

*

Petitioner-Appellant, *

v. * Appeal from the United

States

* District Court for the

Western

Michael Bowersox, * District of Missouri

*

Respondent-Appellee. *

___________

Richard L. Crane, *

*

Petitioner-Appellant,*

v. * Appeal from the United

States

* District Court for the

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.

Missouri state inmates Michael Nichols and Richard Crane challenge

the dismissal of their petitions for writs of habeas corpus brought

pursuant to 28 U.S.C. § 2254. The district court, believing it was

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 as

untimely under 28 U.S.C. § 2244(d)(1). On appeal, 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 the

district court—applies to the filing of a petition for writ of habeas

corpus. We conclude that it does, and reverse and remand for proceedings

consistent with this opinion.

I. BACKGROUND

On September 15, 1993, Michael Nichols was convicted in the Circuit

Court of Jackson County, Missouri of one count of 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 possibility of probation or

parole as well as three lesser concurrent terms of imprisonment. On

February 20, 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 “the

1

great writ” in Ex parte Bollman, 8 U.S. (4 Cranch) 75, 96 (1807). By the time Chief

Justice Marshall so described it, the writ of habeas corpus had already enjoyed several

centuries of recognition, dating back at least to the English common law of the

thirteenth century. See, e.g., Charles D. Forsythe, The Historical Origins of Broad

Federal Habeas Review Reconsidered, 70 NOTRE DAME L. REV. 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 legality of the detention of one in the custody of another.’ The writ is

deeply based in the English common law, dating back at least to the thirteenth

century.”) (citations omitted); Emanuel Margolis, Habeas Corpus: The No-Longer

Great Writ, 98 DICK. 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, in

part, ordered sheriffs to bring certain prisoners before the justices.” Id. at 1090 (citing

1 SIR FREDERICK POLLOCK & FREDERICK MAITLAND, THE HISTORY OF ENGLISH LAW

137 (2d ed. 1968). Although the writ of habeas corpus has a long history in the

common law, and, in this country, the common law has been used to determine its

scope, it was not until 1867 that Congress extended federal habeas jurisdiction to state

prisoners by statutory enactment. Id. at 1087-88; Margolis, The No-Longer Great

Writ, 98 DICK. L. REV. at 564. Although the American history of the Great Writ has

been rich, the grant of a writ of habeas corpus to a state prisoner is extraordinarily rare,

as it should be if our dual system of state and federal courts is to function with proper

respect for the state criminal adjudications. Nonetheless, part of the respect due our

criminal justice system cannot help but be the result of the power of courts to continue

constitutional review of convictions, even after direct appeals have run their course.

(continued...)

3

Jasper County, Missouri of one count of second degree burglary and one

count of stealing. Crane was sentenced to concurrent prison terms of

twenty years and one year respectively for these crimes. The Missouri

Court of Appeals affirmed Crane’s conviction and sentence on June 28, 1994.

After exhausting their state post-conviction remedies, Nichols and

Crane, both proceeding pro se, prepared petitions for writs of habeas

corpus, the “Great Writ” ,

1
 (...continued) 1

See, e.g., 1 WILLIAM BLACKSTONE, COMMENTARIES 130-31 (1765) (“Of great

importance to the public is the preservation of this personal liberty: for if once it were

left in the power of any . . . magistrate to imprison arbitrarily whomever he or his

officers thought proper . . . there would soon be an end of all other rights and

immunities.”). 

 Section 2244(d) provides, in pertinent part, that: 2

(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 the latest of—

(A) the date on which the judgment became final 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. § 2244(d).

4

pursuant to 28 U.S.C. § 2254. Nichols and Crane signed their petitions on

April 20 and April 21, 1997, respectively. Although the record is silent

regarding the date the petitions were actually mailed, uncontradicted

evidence in the record reflects that Nichols and Crane submitted their

petitions to their respective prison mail systems on the date that the

petitions were signed. The clerk of the district court received and filed

Nichols’ petition on April 28, 1997. Crane’s petition was received and

filed by the clerk on April 29, 1997.

The respondents moved the district court to dismiss both petitions

on the ground that they were untimely filed. Specifically, the respondents

argued that pursuant to 28 U.S.C. § 2244(d)(1), Nichols and Crane were

required to file their habeas petitions on or before April 23, 1997.2
 As an initial matter, the respondents assert that the district court improvidently

3

granted the certificates of appealability because the dismissal for untimeliness did not

implicate a matter of constitutional dimension. Accordingly, respondents argue,

Nichols 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, the

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 the authority to issue certificates of appealability under § 2253(c) and FED.

R. CIV. P. 22(b), Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997), so long as

the judge finds a substantial showing of the denial of a federal constitutional right .

Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997). A substantial showing is a showing

that issues are debatable among reasonable jurists, a court could resolve the issues

differently, or the issues deserve further proceedings. Cox, 133 F.3d at 569 (citing

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 first

observed 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 the

applicable filing deadline. The district court then considered this

court’s decision in Allen v. Dowd, 964 F.2d 745, 746 (8th Cir. 1992), and

concluded that in that case this court “refused to extend the prison

mailbox rule to the filing of habeas corpus petitions.” (App. at 48). The

district court noted that Allen was decided before the addition of the one

year time limitation in 28 U.S.C. § 2244(d)(1), but nevertheless

reluctantly concluded that it was constrained by Allen from extending the

mailbox rule to pro se petitions for habeas corpus relief. The court found

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 of

appealability on 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 mailbox rule extends to a pro se prisoner’s filing of a petition for writ of

habeas corpus, the district court’s dismissal of the petitions on procedural grounds

foreclosed their constitutional right to petition for the writs. See U.S. CONST., 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 defective, the “appeal proceeds in this Court

in the ordinary course. If we believed that the issues were without substance, we

would simply summarily affirm the judgment, instead of taking the intermediate and

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 were

consolidated for disposition.

II. STANDARD OF REVIEW

Nichols and Crane contend that the dismissal of their petitions was

erroneous on two alternative grounds. First, they 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 assert

that such an extension is warranted by the newly enacted one-year period

of limitation for federal habeas petitions contained in 28 U.S.C.

§ 2244(d)(1). Alternatively, Nichols and Crane assert that
 Of course this is not to say that the pursuit of habeas relief was utterly

4

unrestrained. Rule 9(a) of the Rules Governing Section 2254 Cases specifically

addressed the issue of “delayed petitions”:

A petition may be dismissed if it appears that the state of

which the respondent is an officer has been prejudiced in its

ability to respond to the petition by delay in its filing unless

the petitioner shows that it is based on grounds of which he

could not have had knowledge by the exercise of reasonable

diligence before the circumstances prejudicial to the state

occurred.

RULES GOVERNING SECTION 2254 CASES, R. 9(a). 

7

even if the prison mailbox rule does not apply, the doctrine of equitable

tolling should stall the running of the one-year limitation period because

“extraordinary circumstances” beyond their control prevented them from

filing their habeas petitions. We review the district court’s dismissal

of the petitions for habeas corpus relief de novo. United States v. Beck,

122 F.3d 676, 677 (8th Cir. 1997); Reese v. Delo, 94 F.3d 1177, 1181 (8th

Cir. 1996), cert. denied sub nom., Reese v. Bowersox, 117 S. Ct. 2421

(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 the

Antiterrorism and Effective Death Penalty Act (“AEDPA”) of 1996 was signed

into law. This subsection amends 28 U.S.C. § 2244 by imposing a one-year

time limitation following the conclusion of state court review for the

filing of § 2254 habeas petitions. The one-year limitation dramatically

reduced a state inmate’s window of opportunity to pursue habeas relief

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 FED. R. APP. P. 4(c).

8

Nichols and Crane were convicted and sentenced prior to the enactment

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 file

their petitions was April 23, 1997. At oral argument, the respondents

challenged the district court’s calculation of the filing deadline. This

argument was not raised below, and we will not address it for the first

time on appeal. See Colonial Ins. Co. v. Spirco Envtl., Inc., ___ F.3d

___,___, 1998 WL 73076 *1 (8th Cir. Feb. 24, 1998); United States Dep’t of

Labor v. Rapid Robert’s Inc., 130 F.3d 345, 348 (8th Cir. 1997). As stated

above, Nichols’ petition was signed and submitted to the prison mail system

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 were

“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 United States Supreme Court’s decision

in Houston v. Lack, 487 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 to

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 appeal

without the aid of counsel is unique. Such

prisoners cannot take the steps 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-

day deadline. Unlike other litigants, pro se

prisoners cannot personally travel to the

courthouse to see that the notice is stamped

“filed” or to establish the date on which the court

received the notice. Other litigants may choose to

entrust their appeals to the vagaries of the mail

and the clerk’s process for stamping incoming

papers, but only the pro se prisoner is forced to

do so by his situation. . . . Worse, the pro se

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 270-72. 

Mindful that many lower courts had rejected general application of

the mailbox rule to determine when a notice of appeal was filed, the Court

explained that policy concerns associated with pro se prisoner filings

warranted application of the rule to the filing of these litigants’ notices

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 virtually

no means by which to track the whereabouts of his notice:

Unskilled in law, unaided by counsel, and unable to

leave the prison, [the prisoner’s] control over the

processing of his notice necessarily ceases as soon

as he hands it over to the only public officials to

whom he has access—the prison authorities—and the

only information he will likely have is the date he

delivered the notice to those prison authorities

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 chooses to entrust the mail system to promptly deliver

a notice of appeal:

The pro se prisoner does not anonymously drop his

notice of appeal in a public mailbox--he hands it

over to prison authorities who have well-developed

procedures for recording the date and time at which

they receive papers for mailing and who can readily

dispute a prisoner’s assertions that he delivered

the paper on a different date.

Id. at 275. In this sense, the general concern that application of a

mailbox rule would spawn disputes and uncertainty as to when a litigant

mailed the notice is alleviated in the case of a pro se inmate because

prison authorities—via the prison mail log—will have access to the

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 mailbox 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 not

be extended to other pro se filings. This argument is unavailing. As this

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 filings

outside the habeas context. Miller, 51 F.3d at 169, n.2 (citing United

States v. Moore, 24 F.3d 624 (4th Cir. 1994) (extending mailbox rule to

notice of appeal from a criminal case); Dory v. Ryan, 999 F.2d 679 (2d Cir.

1993) (applying rule to § 1983 complaint); Thompson v. Raspberry, 993 F.2d

513, 515 (5th Cir. 1993) (per curiam) (extending rule to the filing of

objections to magistrate judge’s report and recommendation); Garvey v.

Vaughn, 993 F.2d 776, 783 (11th Cir. 1993) (applying rule to § 1983

complaints as well as complaints brought pursuant to the Federal Tort Claim

Act); Faile v. Upjohn Co., 988 F.2d 985, 988-89 (9th Cir. 1993) (applying

rule to all pro se prisoner filings); Simmons v. Ghent, 970 F.2d 392, 393

(7th Cir. 1992) (extending 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, 1190

(10th Cir. 1989), cert. denied, 493 U.S. 1059 (1990) (applying rule to the

filing of objections to magistrate judge’s report and recommendation)); see

also, McGore v. Wrigglesworth, 114 F.3d 601, 605 (6th Cir. 1997) (applying

rule to a motion for an extension of time to correct deficiencies

concerning in forma pauperis status); Smith v. Evans, 853 F.2d 155 (3d Cir.

1988) (extending rule to the filing of a motion for reconsideration

pursuant to FED. R. CIV. P. 59(e)). 

Our circuit has also extended the prison mailbox rule to pro se

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 should 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 the

propriety of extending the prison mailbox rule—this time in the context of

a pro se prisoner’s motion for reconsideration pursuant to FED. R. CIV. P.

59(e). United States v. Duke, 50 F.3d 571, 575 (8th Cir. 1995). In Duke

this court stated:

We believe that the rationale of Houston and the

new Rule 4(c) applies with equal force to a motion

which, under Rule 4(a)(4), tolls the time for the

filing of a notice of appeal. . . Thus, we hold

that Duke’s motion for reconsideration should be

deemed timely served if it was delivered to prison

authorities for mailing within the ten-day time

period of FED. R. CIV. P. 59(e) and FED. R. APP. P.

4(a)(4)(F).

Id. Compare Burgs v. Johnson County, Iowa, 79 F.3d 701, 702 (8th Cir. 1996)

(concluding that Burgs was not entitled to the benefit of Houston because

he was represented by counsel and thus in the same position as other

litigants who rely on their attorneys to file a timely notice of appeal).

C. Application Of The Rule To Habeas Petitions

The respondents contend that even if the prison mailbox rule is

properly applied to certain pro se inmate filings, the rules governing

habeas procedure prohibit its application to the filing of habeas

petitions. In support of this contention, the respondents direct our

attention to Rule 3 of the Rules Governing Section 2254 Cases. Rule 3(a)

provides that a petition for writ of habeas corpus relief “shall be filed

in the office of the clerk of the district court.” RULES GOVERNING SECTION

2254 CASES, R.3(a). Rule 3(b) sets forth the duties of the clerk of court

pertaining to habeas petitions, and provides, in pertinent part, as

follows:
13

(b) Filing and service. Upon receipt of the

petition and the filing fee, or an order granting

leave to the petitioner to proceed in forma

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. . . .

RULES GOVERNING SECTION 2254 CASES, R. 3(b). In the respondents’ view, Rule 3

plainly defines the moment at which a habeas petition is filed and

therefore, by implication, prohibits application of the prison mailbox

rule. 

While we agree that Rule 3(a) prescribes the procedures by which a

habeas litigant is to file his or her petition, we reject the assertion

that Rule 3 defines the moment when a habeas petition is “filed” for

purposes of the one-year time limitation set forth in § 2244(d)(1). In our

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 litigants are unable to journey to the district court

clerk’s office to file their habeas petitions. Instead, they must submit

their petitions to prison authorities for forwarding to the clerk. We hold

that there is no meaningful 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 diligence of prison authorities

to forward their documents for filing. The respondents assert that the

Rules Governing Section 2254 Cases contemplate the situation of an

incarcerated litigant and by omission, reject the necessity of the prison

mailbox rule. Respondents’ 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 directly

address the situation of an incarcerated pro
14

se litigant. It is this combination of obstacles that gave rise to the

policy concerns expressed in Houston and that concern us today. 

Respondents argue that even if the prison mailbox rule is applied to

the petitioners’ filings, their petitions were still untimely because they

were not submitted with the proper in forma pauperis paperwork as required

by Rule 3(b). We disagree. A standing order of the district court

specifically grants incarcerated petitioners with provisional leave to

proceed in forma pauperis at the time their petitions are received by the

court clerk and we see no reason to deny Nichols and Crane the benefit of

this local rule. As the district court observed, the petitions were

considered filed on the date they were received by the clerk despite the

absence of the in forma pauperis documents. If the prison mailbox rule

applies, the petitions would have been sufficiently complete under the

district court’s standing order on the date they were submitted to prison

authorities for mailing. Although the respondents’ argument on this point

is nebulous at best, to the extent they invite us to consider the propriety

of the standing order, we decline the invitation. The respondents did not

challenge the district court’s standing order below, and we will not

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 emphasize that unlike FED. R. CIV. P. 4(c), Rule

3 has not been amended to incorporate the prison mailbox rule. One

interpretation of this is, as respondents suggest, that the prison mailbox

rule was not intended to apply to the filing of habeas petitions. An

equally plausible interpretation is that no amendment to the Rules

Governing Section 2254 Cases was necessary prior to the enactment of the

AEDPA because no statutory time limitations were imposed upon the filing

of habeas petitions. Nothing in Houston indicates that the prison mailbox

rule is strictly
15

reserved for notices of appeal, and we decline to engage in inferential

guesswork to reach such a conclusion.

 Finally, respondents contend that in Allen v. Dowd, 964 F.2d 745 (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 habeas

petition was dismissed on the ground that he did not satisfy the statute’s

“in custody” requirement. Allen, 964 F.2d at 745. The district court

concluded that Allen’s petition was not filed until eight days after he

completed the challenged state prison sentence. Allen had completed his

first sentence and was serving his second consecutive prison sentence. His

first conviction and sentence were the subject of his habeas petition.

Accordingly, Allen was no longer “in custody”—for purposes of the relevant

conviction and sentence—on the date his petition was filed. On appeal,

Allen argued that his earlier conviction affected the sentence he was

presently serving to the extent that it delayed his release date. Relying

upon the rule set forth in Maleng v. Cook, 490 U.S. 488 (1989) (per

curiam), Allen asserted that he was entitled to challenge the sentence for

which he was currently “in custody” on the ground that the allegedly

invalid prior conviction, on which the sentence had expired, enhanced his

current sentence. Allen, 964 F.2d at 746 (citing Maleng, 490 U.S. at 493-

94). 

This court rejected Allen’s contention, finding that his reliance on

Maleng was misplaced:

[Allen’s] argument overlooks the fact that nowhere

in his petition does he challenge his later

conviction. Allen expressly restricts himself to

challenging the 1982 conviction for receiving

stolen property. In Taylor v. Armontrout, 877 F.2d

726 (9th Cir. 1989) (per curiam), we
16

affirmed a dismissal where the petitioner had served the sentence

challenged in his habeas petition and had failed to assert in his petition

an attack against a current sentence, even though he argued on appeal that

the earlier conviction resulted in an enhancement of his later sentence.

Id. Although Allen was not allowed to proceed under Maleng, this court

observed that he was entitled to file a new petition properly attacking the

conviction for which he was presently incarcerated. Id.

Allen also argued that he deposited his petition for mailing with

prison authorities approximately five days before his release and

therefore, under the rule espoused in Houston, the district court should

have deemed his petition filed on the date of mailing. The Allen court

rejected this argument stating:

Allen’s argument fails, for [Houston] is limited to

notices of appeal which have a 30-day deadline

under 28 U.S.C.A. § 2107(a) and FED. R. CIV. P.

4(a)(1). This case does not concern a notice of

appeal or other filing with a 30-day deadline.

Moreover, this court has recently held that filing

does not occur in a habeas case until the

petitioner has either paid the filing fee or been

granted leave to proceed in forma pauperis. Weaver

v. Pung, 925 F.2d 1097, 1099 (8th Cir.), cert.

denied, 502 U.S. 828 (1991). Allen was not granted

leave to proceed in forma pauperis until June 13,

1990. We thus hold that the district court did not

err in holding that Allen was not “in custody” when

his petition was filed.

Id. (emphasis added) (some internal citations omitted). 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 this

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

opinion that are entirely unnecessary for the decision of the case.” BLACK’S LAW

DICTIONARY 1072 (6th ed. 1990). Examples of dicta include a “remark made, or

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 involved in the determination of the cause, or introduced by way

of illustration, or analogy or argument.” 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 States

v. Prior, 107 F.3d 654, 660 (8th Cir. 1997); United States v. Dittrich, 100

F.3d 84, 87 (8th Cir. 1996), cert. denied, 117 S. Ct. 1454 (1997); Jenkins

v. State of Missouri, 73 F.3d 201, 205 (8th Cir. 1996). Only the court

sitting en banc may effectuate 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 by

another panel’s dicta. Wilson v. Zoellner, 114 F.3d 713, 721 n.4 (8th

6

Cir. 1997); see also, Boyer v. County of Washington, 971 F.2d 100, 102 (8th

Cir. 1992) (per curiam) (noting that statement in prior case “was not

necessary to decide the issue in the case and is not binding authority

[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 Allen, 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 “not

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

The holding in Allen was premised on the fact that 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 “transparent rule-making,” have “by-passed circuit precedent, the en banc court,

and Congress,” and have made an “end run around Allen.” To the contrary, we

acknowledge that if the targeted passage in Allen is not obiter dictum, only the court

sitting en banc has the power to overturn Allen and arrive at the conclusion we reach

today. Furthermore, while the dissent never addresses the threshold issue of whether

the targeted passage in Allen is or is not dictum, we have explained our reasons for

concluding that Allen’s observations regarding the prison mailbox rule were merely

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 purposes of challenging the prior conviction or its effect on his

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 the

challenged conviction and sentence because that sentence expired five days

after he mailed the petition. Without referencing his second sentence,

Allen confined himself to challenging a sentence that was completed before

any habeas relief could be granted. See Allen, 964 F.2d at 746.

Consequently, we are not bound by the panel decision in Allen. See

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 prison

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 now

imposed on habeas petitions. This is particularly significant because at

the time Allen was decided, pro se prisoners were not in jeopardy of being

foreclosed from pursuing habeas relief if their petitions were not received

by a certain date. Put simply, application of the 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 heavily

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 Supreme

Court in Houston apply with equal force to a pro se prisoner’s filing of

a petition for writ of habeas corpus. As the Fourth Circuit Court of

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 of

equal treatment; it seeks to ensure that imprisoned

litigants are not disadvantaged by delays which

other litigants might readily overcome. It sets

forth a bright line rule—that filing occurs when

the petitioner delivers his pleading to prison

authorities for forwarding to the court clerk.

Lewis, 947 F.2d at 735 (extending prison mailbox rule to a § 1983

complaint). 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 prison

authorities for mailing to the clerk of court. In the context of a habeas

petition controlled by the time restraints contained in 28 U.S.C.

§ 2244(d)(1), the pro se inmate’s lack of control is particularly

compelling because as with a notice of appeal, if the inmate’s documents

are not timely filed, the inmate is foreclosed from pursuing further

relief. As explained above, this conclusion is not contrary to this

court’s ruling in Allen v. Dowd because at the time that case was

considered, habeas petitioners were constrained only by the prejudicial

concerns addressed in Rule 9(a) of the Rules Governing 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] good

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 expressly

extended the prison mailbox rule to the filing of 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 is

inapplicable to habeas petitions. We note that the district court’s decision 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 prison

authorities one day before 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 113. In reaching this conclusion, the Burns court emphasized the

obstacles—particularly the lack of control—confronting pro se inmates:

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 [v. UpJohn

Co., 988 F.2d 985, 988 (9th Cir. 1993)]. We share

their concern . . . [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.

Id.

Two other cases, also cited in Burns, warrant mentioning. Although

the Sixth Circuit Court of Appeals has yet to address the precise issue

raised here, it has
21

applied the prison mailbox rule to a motion made pursuant to § 2244(b)(3)

for authorization to file a second or successive motion under 28 U.S.C.

§ 2255. In re Sims, 111 F.3d 45, 47 (6th Cir. 1997) (stating that “for

purposes of the one-year limitations periods established by § 2244(d) and

§ 2255, on the date that the § 2244(b)(3) motion is given to prison

authorities for mailing and the prisoner has satisfied the verification

requirements of FED. R. APP. P. 25(a)(2)(C).”); accord United States v.

Dorsey, ___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 by

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), which has

subsequently been 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 Judge Shadur, considered the applicability of the prison

mailbox rule to a § 2254 petition and concluded that the rule should be

applied to habeas cases in the district court as well as in the court of

appeals. Judge Shadur discussed at length the unreported decision in

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 the

prison mailbox rule to § 2254 petitions because the

filing deadline is one year as opposed to 30 days]

that a prisoner assertedly doesn’t have much need

for the benefit of the mailbox rule . . . ignores

the basic nature of every statute of limitations as

a bright-line rule on which a litigant is entitled

to rely: Nothing requires an Illinois personal

injury plaintiff (for example) to enter the

courthouse before the second anniversary of the

tortious event that harmed him or her, although

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

situation, the Gilmore court concluded that the prison mailbox rule was

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, 778

(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 persuaded that the one-year filing deadline contained in 28

U.S.C. § 2244(d)(1) has brought the concerns expressed in Houston to bear

upon a pro se inmate attempting to file a petition for habeas corpus

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 to

prison authorities for mailing to the clerk of court. There is

uncontradicted evidence in the record that the petitioners submitted their

habeas petitions to prison authorities days before the April 23, 1997

filing deadline.
 In light of our holding and conclusion that the petitions were timely filed, we need 9

not address the issue of whether the doctrine of equitable tolling applies to the time

limitation set forth in 28 U.S.C. § 2244(d)(1). We express no opinion on this issue.

23

Accordingly, we hold that the petitions were timely filed. The

9

decision of the district court is reversed, and the causes are remanded for

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), by

extending the prison mailbox rule announced 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, 269 (8th Cir. 1996), Allen makes clear that in this circuit the prison mailbox rule "is limited to

notices of appeal." Allen, 964 F.2d at 746.

Additionally, my colleagues' transparent rule-making end run around Allen is 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 the

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 United States District Courts which governs the filing of habeas corpus petitions. See id. Unlike

Congress's amendment to Federal Rule of Appellate Procedure 4(c) to reflect the decision in Houston v. Lack,
24

Congress has neither 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. Without

doubt, the courts of appeals' decisions around 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 state

prisoners is within the domain of the en banc 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