UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Vernon Gray

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

Opinion No. 2008 DNH 151

Richard M. Gerry, Warden,

New Hampshire State Prison

O R D E R

Respondent and petitioner have complied with the directives

given in this court’s order dated June 25, 2008.

Timeliness of the “Appeal”

Respondent says petitioner is not entitled to the “prison

mail rule” because he had been released to a halfway house in

June of 2007, so was not in prison when the appeal period ran. 

Respondent counters, under oath and without contradiction, that

although he was in a halfway house, he was not there as a “C-1"

resident, but rather had been assigned as a “C-2" inmate to cook

for the program residents.

Petitioner also says that while at the halfway house his

outgoing mail was handled either by giving it to corrections

staff for mailing, or, by mailing it himself on Fridays, when he

was taken by corrections staff to the post office, bank, store,

etc.

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Petitioner signed his “appeal” on March 17, and intended to

mail it himself on Friday, March 21, but that trip to the post

office was cancelled due to inclement weather. He waited to mail

it the next Friday, March 28, but that trip was cancelled as

well.

Petitioner says he was not sure how the 30-day appeal period

was properly calculated, so, on Friday, April 4, 2008, he gave

his “appeal” to corrections staff at the halfway house to be

mailed. Under the prison mail rule the appeal would be timely,

as the appeal had to be filed by April 5, 2008. If the prison

mail rule is not applied, the appeal was nine days late (filed

with the Court of Appeals on April 14, 2008). In any event,

petitioner also filed a timely motion to extend the time in which

to file a notice of appeal. Fed. R. App. P. 4(a)(5)(A).

The prison mail rule ought to apply, given that petitioner

was not free to leave the halfway house to mail his appeal, and,

except for supervised trips to the post office on Fridays,

petitioner was dependent upon corrections staff to deposit his

mail in the postal system, and he gave his “appeal” to

corrections staff before the deadline expired. Even if the mail

rule does not apply, however, petitioner has shown excusable

neglect warranting an extension of time to file, given the very

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short delay, the insignificant impact on judicial proceedings,

the absence of prejudice to the respondent, the reason for the

delay (cancellation of petitioner’s Friday trips to the post

office on March 21 and March 28, 2008), and his assumed good

faith belief that corrections staff would mail his “appeal”

promptly, and that the prison mail rule applied.

Accordingly, the motion for extension of time in which to

file an appeal (document no. 22) is granted. The “appeal” is

deemed timely filed, either because under the prison mail rule it

was timely filed on April 4, 2008, or, alternatively, because it

was filed within the extended time the court has allowed.

Certificate of Appealability

Petitioner’s request for a certificate of appealability

(“COA”), permitting him to pursue an appeal of this court’s

denial of his habeas corpus petition is denied. See 28 U.S.C.

§ 2253(c).

I find that petitioner has not made a “substantial showing

of the denial of a constitutional right.” Id. When a “district

court has rejected the [petitioners] constitutional claims on the

merits, the showing required to satisfy § 2253(c) is

straightforward. The petitioner must demonstrate that reasonable

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jurists would find the district court’s assessment of the

constitutional claims debatable or wrong.” Miller-El v.

Cockrell, 537 U.S. 322, 338 (2003), quoting Barefoot v. Estelle,

463 U.S. 880, 893, n. 4 (1983); see also Slack v. McDaniel, 529

U.S. 473, 484 (2000). Petitioner’s motion merely reiterates

arguments and contentions made previously, which were fully

addressed in the court’s dispositive orders. Nothing in

petitioner’s motion addresses the applicable standard for

granting a COA, and the court does not find that its assessment

of petitioner’s claims would be found to be either debatable or

wrong by reasonable jurists.

If that assessment is itself wrong, then, of course,

petitioner remains entitled to seek the necessary certificate

directly from the United States Court of Appeals for the First

Circuit.

Conclusion

The appeal is timely. The request for a certificate of

appealability is denied.

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SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

August 21, 2008

cc: Vernon Gray, pro se

Susan P. McGinnis, Esq.

Stephen Fuller, Office of NHAG

John Vinson, NHDOC

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