UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Vernon Gray,

Petitioner

v. Civil No. 07-cv-77-SM

Opinion No. 2008 DNH 122

Bruce Cattell, Warden,

New Hampshire State Prison,

Respondent

O R D E R

The court of appeals treated petitioner’s “Petition for Writ

of Habeas Corpus” filed in that court, and seeking “de novo

review” of this court’s earlier denial of that same petition, as

a notice of appeal. See Fed. R. App. P. 4(d) (a notice of appeal

mistakenly filed in the court of appeals is treated as having

been filed in the district court on the date it was received by

the appellate court). Accordingly, this court docketed the

“notice of appeal” as of April 14, 2008.

Timeliness of Appeal

Judgment denying the original petition was entered in this

court on March 5, 2008. So, petitioner had until April 5, 2008,

to file a timely notice of appeal. Fed. R. App. P. 4(a)(1)(A). 

His “notice of appeal” facially appears to have been filed about

nine days too late.

Case 1:07-cv-00077-SM Document 30 Filed 06/25/08 Page 1 of 6
2

But, petitioner is a prisoner, and the “notice of appeal”

apparently was signed on March 17, 2008, well before the thirty

day period expired. Under the “mail rule,” a notice of appeal

filed by an inmate confined in an institution is deemed to have

been timely filed when it is deposited in the institution’s

internal mail system on or before the last day for filing. Fed.

R. App. P. 4(C). Unfortunately, the record in this case is both

undeveloped and unclear with respect to that critical point —

petitioner is silent and respondent overlooks Fed. R. App. P.

4(d) in focusing his argument on the erroneous proposition that

the “mail rule” only applies if a notice of appeal is mailed to

the correct court. Houston v. Lack, 487 U.S. 266 (1988), cited

by respondent, does not suggest such a conclusion.

Actually, Houston fully recognizes that it is prison

authorities who are in the best position to resolve doubts about

timeliness under the mail rule:

Because reference to prison mail logs will generally be

a straightforward inquiry, making filing turn on the

date the pro se prisoner delivers notice to prison

authorities for mailing is a bright-line rule, not an

uncertain one. * * * The prison will be the only

party with access to at least some of the evidence

needed to resolve such questions — one of the vices the

general rule is meant to avoid — and evidence on any of

these issues will be hard to come by for the prisoner

confined to his cell, who can usually only guess

whether the prison authorities, the Postal Service, or

the court clerk is to blame for any delay.

Case 1:07-cv-00077-SM Document 30 Filed 06/25/08 Page 2 of 6
3

Id., at 275-276. Gray’s “notice of appeal” was given to prison

authorities to mail sometime after March 17 (when it was signed),

and before April 14, 2008 (when it was received by the court of

appeals), and it seems eminently plausible that it was given to

prison authorities for mailing before April 5, 2008. It is

hardly unusual for this court to receive pleadings mailed by

prisoners well after they are signed and beyond the time one

would expect due to normal postal delays. Respondent’s failure

to refer to or produce any mail logs showing when the “notice”

was received or mailed by prison authorities is perhaps telling

in that regard.

In any event, the critical facts related to timeliness need

to be developed, considered, and the timeliness issue decided. 

See Morales-Rivera v. United States, 184 F.3d 109 (1st Cir.

1999); Allen v. Culliver, 471 F.3d 1196 (11th Cir. 2006). 

Accordingly, on or before July 25, 2008, petitioner shall file a

declaration in compliance with 28 U.S.C. § 1746, or a notarized

statement, setting forth the date he placed the petition (the one

sent to the court of appeals) in the institution’s system

designed for legal mail. See Fed. R. App. P. 4(c)(1).

And, on or before July 25, 2008, respondent shall file a

supplemental pleading disclosing mail log or other business

Case 1:07-cv-00077-SM Document 30 Filed 06/25/08 Page 3 of 6
4

record entries pertinent to petitioner’s filing of the “notice of

appeal.”

Extension of Time in Which to File Notice of Appeal

Respondent concedes that petitioner filed a timely

precautionary motion to extend the time in which to file a notice

of appeal, as suggested by the court of appeals. Fed. R. App. P.

4(a)(5)(A)). Whether to grant a timely motion to extend the time

to file an appeal involves equitable considerations. Factors to

be weighed in determining whether to grant an extension based

upon excusable neglect or good cause shown include the length of

delay (here, a mere nine days), its potential impact on judicial

proceedings (here, probably negligible), the danger of prejudice

to the nonmoving party (here, virtually none), the reason for the

delay (here, cryptically referred to as prisoner movement within

the system and limited access to a law library, as well as

petitioner’s pro se status and his obvious unfamiliarity with

appropriate procedural processes), and, the reason for the delay

(if this appeal was indeed untimely), whether delay was within

the control of the movant, and whether the movant acted in good

faith (here, the reasons for delay are not fully explained, but

petitioner seems to have acted in good faith — he indicated a

desire to appeal early on, signing his “notice” on March 17, and

it was actually mailed, finding its way to the court of appeals.

Case 1:07-cv-00077-SM Document 30 Filed 06/25/08 Page 4 of 6
5

If the “notice of appeal” is deemed untimely, a reasonable

extension nunc pro tunc to April 14, 2008, in which to file a

notice of appeal might still be granted. But petitioner has not

developed either the grounds upon which he invokes excusable

neglect or good cause.

Accordingly, if petitioner did not deposit his petition in

the institution’s mail system for delivery to the court of

appeals on or before April 5, 2008, he shall, again, on or before

July 25, 2008, file a supplemental brief explaining in detail

what specific factors caused his failure to deposit the petition

(now treated as a notice of appeal) in the mail system on or

before the April 5 deadline.

Certificate of Appealability

Nonetheless, even if the “notice” was timely, or if not and

an extension of time is allowed, still, petitioner may not appeal

the final judgment entered by this court denying habeas relief

unless he first obtains a certificate of appealability, either

from this court or from the court of appeals, certifying that he

has “made a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). Petitioner

has not requested such a certificate nor asserted grounds upon

which the requisite finding might be made.

Case 1:07-cv-00077-SM Document 30 Filed 06/25/08 Page 5 of 6
6

In cases involving a timely habeas appeal not accompanied by

a certificate of appealability from the district court, the court

of appeals usually directs the petitioner to seek such a

certificate from the district court within 30 days. That process

suits this case as well. Petitioner shall also file a motion or

application for a certificate of appealability on or before July

25, 2008, fully setting forth any grounds he believes would

justify issuance of such a certificate.

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

June 25, 2008

cc: Vernon Gray, pro se

Susan P. McGinnis, Esq.

Stephen Fuller, Office of NHAG

John Vinson, NHDOC

Case 1:07-cv-00077-SM Document 30 Filed 06/25/08 Page 6 of 6