1 UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 97-30661

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JEWEL SPOTVILLE,

Petitioner-Appellant,

VERSUS

BURL CAIN, Warden, Louisiana State Penitentiary, Angola, LA;

RICHARD P. IEYOUB, Attorney General, State of Louisiana,

Respondents-Appellees.

_____________________________________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

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July 31, 1998

Before POLITZ, Chief Judge, REYNALDO G. GARZA, and DENNIS, Circuit

Judges.

PER CURIAM:

Appellant Jewel Spotville appeals the dismissal of his pro se

habeas corpus petition for failure to comply with the procedures

provided for in 28 U.S.C. § 2244(b)(3)(A), as amended by the

Antiterrorism and Effective Death Penalty Act o f 1996 (“AEDPA”).

Although Spotville tendered to prison authorities for mailing his

petition and application for in forma pauperis (“IFP”) status prior1 S potville dated his petition as June 30, 1995, and it was

stamped as received by the Clerk of Court on July 25, 1995.

2 to the ef fective date of the AEDPA, he did not pay a filing fee

that was subsequently required upon denial of his IFP status until

after the AEDPA took effect. The sole issue presented by this

appeal is when a habeas corpus petition should be considered filed

for purposes of determining the applicability of the AEDPA. This

question is one of first impression in this circuit. We hold that

the habeas corpus petition of a pro se prisoner litigant is filed

for purposes of determining the applicability of the AEDPA at the

time the petiti oner tenders the petition to prison officials for

mailing. Accordingly, we reverse the dismissal of Spotville’s

petition and remand for further proceedings.

Facts

In 1973, Jewel Spotville was convicted of aggravated rape, at

that time a capital offense. Spotville was sentenced to life

imprisonment without benefit of parole, probation, or suspension of

sentence. In July 1995, Spotville, acting pro se, submitted a

habeas corpus petition, his fifth, along with a n application to

proceed IFP, to the United States District Court for the Eastern

District of Louisiana. 1 In his petition, Spotville argues

primarily that he was improperly convicted of a capital crime by a

10-2 jury verdict rather than by a unanimous jury verdict.

Spotville’s applicati on to proceed IFP was denied on August3

16, 1995 by a magistrate judge who found Spotville could pay the

$5.00 filing fee. Spotville paid this fee on April 23, 1997. Two

days later, the magistrate judge recommended that Spotvill e ’s

habeas petition be dismissed without prejudice for his failure to

move in the Court of Appeals for authorization to file a successive

habeas application, pursuant to 28 U.S.C. § 2244(b)(3)(A), as

amended by the AEDPA. On May 21, 1997, the district court adopted

the magistrate judge’s recommendation and dismissed Spotville’s

petition without prejudice.

Spotville timely filed a notice of appeal and moved for a

certificate of appealability (“COA”). The district court granted

Spotville a COA, finding

that petitioner has made a substantial showing of the

denial of a constitutional right related to the following

issue []: Petitioner’s application had to be denied on

the procedural basis that this is a successive writ.

. .

. [T]hat he was convicted by a 10-2 verdict when a

unanimous verdict was required raises a serious issue of

ineffective assistance of counsel. I would very much

like to hear the matter on the substantive merits.

Analysis

Section 2244(b)(3)(A) of Title 28 provides:

Before a second or successive application permitted by

this section is filed in the district court, the4

applicant shall move in the appropriate court of appeals

for an order authorizing the district court to consider

the application.

28 U.S.C. § 2244(b)(3)(A) (West 1998).

Section 2244(b)(3)(A) became effectiv e when the AEDPA was

signed into law on April 24, 1996. See Lindh v. Murphy

, --- U.S.

---, 117 S. Ct. 2059, 2067 (1997). Habeas petitioners “presenting

a second or successive § 2254 habeas petiti on are not subject to

the new successive habeas provisions unless their suc cessive

petitions were filed in the district co urt after the AEDPA’s

effective date[.]” Moran v. Stadler

, 121 F.3d 210, 211 (5th Cir.

1997).

Spotville ’s fifth habeas petition, at issue in the present

case, was tendered to prison officials for mailing to the district

court in July 1995, approximately nine months before the effective

d ate of the AEDPA. The subsequently required filing fee was not

paid until one year after the effective date of the AEDPA, however.

Therefore, the question of whether Spotville’s habeas petition was

properly dismissed pursuant to the AEDPA centers on resolving when

his petition was “filed.”

This court has held that “the relevant date for determining

the applicability of the AEDPA to habeas corpus petitions is the

date that the actual habeas corpus petition is filed.” W illiams v.

Cain

, 125 F.3d 269, 274 (5th Cir. 1997) (emphasis added). Although5

the use of the word “actual” suggests that tendering the petition

to prison officials for mailing is the crucial act of initiating

the habeas proceeding, the meani ng of the word “filed” requires

further examination. The question of when a petition is filed for

the purposes of determining the applicability of the AEDPA to a

habeas action has not been addressed by this circuit, though the

question of when certain pleadings have been filed has been

addressed in other contexts.

Our prior decisions, and decisions of our sister circuits,

indicate that a habeas corpus petition should be deemed filed when

the petition is handed over to prison authorities for mailing. In

Hernandez v. Aldridge

, 902 F.2d 386 (5th Cir. 1990), we considered

at what point a pro se prisoner’s notice of appeal is filed for

purposes of determining if it had been filed within requisite time

limitations. In that case, the plaintiff had tendered his

complaint to the court clerk before the limitations time-bar, but

the clerk did not docket it as “filed” until 19 days later, after

the limitation period had expired. We held “that when a notice of

appeal is in the custody of the clerk within the time required by

statute, the notice has been ‘filed’ with in the requisite time.”

Id. at 388 (citation omitted) (emphasis added). We determined that

the clerk’s physical custody of the notice of appeal, upon its

being tendered by the plaintiff, was the point at which the notice

of appeal was “in the c ustody of the clerk,” not when the it was6

technically entered as “filed.” Id.

Similarly, in Cooper v. Brookshire

, 70 F.3d 377, 379 (5th Cir.

1995), we held that a pro se prisoner litigant’s Section 1983

complaint is filed as soon as the pleadings have been deposited

into the prison mail system. We relied on the Supreme Court’s

ruling in Houston v. Lack

, 487 U.S. 266 (1988), which established

a similar “ma ilbox rule” for determining when a pro se notice of

appeal from dismissal of a habeas action would be considered filed.

In Houston, the Court recognized that, “[u]nskilled in law, unaided

by counsel, and unable to leave the prison , a pro se prisoner’s

control over the proce ssing of his notice necessarily ceases as

soon as he hands it over[.]” Id. at 266. The H ouston rationale was

adopted by this court in Cooper and is helpful in anal yzing the

prese nt case. Because we have recognized that a pro se litigant

has initiated, or “filed,” his petition properly when he has

completed everything within his control to deliver the actual

petition to the court, we should not create a separate and somewhat

contrary rule in a case in which a pro se litigant’s IFP status is

denied subsequent to initiating the petition. C f. Cooper

, 70 F.3d

at 381 (holding that a time-bar should have the same effect on all

pro se litigants, because they are “needful of a level playing

field”).

Recently, the Third Circuit applied Houston to the filings of

a pro se prisoner’s habeas petition for the purpose of applying the7

AEDPA’s one-year time limit. In B urns v. Morton

, 134 F.3d 109 (3d

Cir. 1998), the pro se litigant presented his habeas petition to

prison officials for mailing on April 22, 1997, one day before the

one-year limitations period provided for in 28 U.S.C. § 2244(d)(1)

expired. The petition was not received by the district court until

April 28, 1997, however, and was not docketed as filed until May 5,

1997. The district court concluded that the petition was filed

after the one-year limitations period that began running on April

24, 1 996 had expired, and dismissed it as untimely. The Third

Circuit found that “the same concerns expressed by the Court in

Houston pertain to filing a pro se prisoner’s habeas petition.”

Id. at 112. Accordingly, the court reversed the dismissal of the

petition and held that “a pro se prisoner’s habeas petition is

deemed filed at the moment he delivers it to prison officials for

mailing to the district court.” Id. at 113; see also Peterson v.

Demskie

, 107 F.3 d 92, 93 (2d Cir. 1997) (applying H ouston to its

consideration of when a Section 2254 petition is filed for purposes

of determining whether it was filed within a reasonable time of the

effective date of the AEDPA).

The Sixth Circuit has applied Houston to a petitioner’s motion

to file second or successive Section 2255 motions. That court held

that “[t]he § 2244(b)(3) motion to file the second or successive

petition or § 2255 motion will be deemed filed, for purposes of the

one-year limitation periods established by § 2244(d) and § 2255, on8

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

authorities for mailing[.]” In re Sims , 111 F.3d 45, 47 (6th Cir.

1997) (citing Houston , 487 U.S. at 270).

In these cases, the courts expressed concern over the pro se

prisoner’s lack of control over the filing of documents. That same

concern is implicated here. Accordingly, we see no compelling

reason why we should reject the rationale of our decisions in

Hernandez and Cooper in this context. In H ernandez and Cooper

, the

plaintiffs had, in a timely manner, performed what was required of

them to initiate proceedings. Once they had initiated the

proceedings by tendering their complaints, the time bar was no

longer applicable; whatev er needed to follow in completing the

process of “filing” the pleadings at the clerk’s office was no

longer subject to the time bar.

In the presen t case, Spotville initiated his proceedings

properl y by tendering to prison officials for mailing his habeas

petition and application for IFP status, pursuant to the pre-AEDPA

statutes, approximately nine months befor e the AEDPA went into

effect. The decision regarding his IFP status, and any necessary

subsequent action (the payment of the fee), did not change the set

of rules pursuant to which Spotville tendered his petition. In

Hernandez , the timeliness of the notice of appeal for purposes of

the limitations period was not dependent on actions occurring after

Hernandez initiated the process by tendering the requisite papers2 This court’s disposition of leniency toward pro se litigants

has been tempered in certain circumstances, however. S ee Saahir v.

Collins

, 956 F.2d 115, 119 (5th Cir. 1992) (holding there should be

no distinction between pro se petitioners and those represented by

counsel, for abuse of writ purposes); but see May v. Collins

, 948

F.2d 162, 166 n.3 (5th Cir. 1992) (acknowledging distinction

between abusive petitions and successive petitions).

9 to prison officials for mailing to the court; similarly, the

timeliness of Spotville’s petition for purposes of application of

the effective date of the AEDPA depends, not on a fee payment, but

o n when Spotville delivered his papers to prison authorities for

filing.

Furthermore, a rule that payment of a filing fee upon the

subsequent denial of IFP status determines the applicability of the

AEDPA would be contrary to this court’s traditional disposition of

leniency toward pro se litigants. See Gallegos v. Louisiana Code

of Criminal Procedure Art. 658

, 858 F.2d 1091, 1092 (5th Cir. 1988)

(holding that leniency should be accorded to pro se litigants when

the defect in a complaint is merely procedural and there are

potential grounds for relief); Moawad v. Childs

, 673 F.2d 850, 851

(5th Cir. 1982) (holding that “[a] pro se complaint . . . should

not be dismissed unless it appears that the plaintiff can prove no

set of facts which would entitle him to relief”). 2

Our holding in Grissom v. Scott

, 934 F.2d 656 (5th Cir. 1991),

has no bearing on our decision today . In Grissom

, the plaintiff

filed a Section 1 983 action against his former defense attorney.

Grissom sought IFP status. The magistrate judge denied the IFP10

application and ordered payment of a partial filing fee. After

Grissom paid the partial fee, the magistrate found the complaint to

be frivolous and recommended dismissal pursuant to 28 U.S.C. §

1915(d). Grissom appealed, arguing that, once he paid the partial

filing fee, his complaint could not be dismissed as frivolous

pursuant to Section 1915(d) and that a summons should have issued.

We agreed, holding that “when a district court allows a litigant to

proceed upon the payment of a partial filing fee, the court should

treat the complaint in the same manner as a complaint that was not

filed in forma pauperis.” Id. at 657 (citations omitted).

In support of our holding, we stated that a complaint is

“deemed filed ” upon the payment of the filing fee, if any were

required. I d. (citing Herrick v. Collins

, 914 F.2d 228, 230 (11th

Cir. 1990))

. This statement

, h owever, is limited in its

application to determining when a petition should be treated as one

not filed IFP for purposes of applying Federal Rule of Civil

Procedure 4(a), which requires that a summons issue “[u]pon the

filing of a complaint.” Grissom relied on Herrick

, wherein the

Eleventh Circuit was expressly concerned with reconciling the

effect of Rule 4(a) on complaints not filed IFP with the effect of

Rule 4(a) on complaints filed IFP where IFP status was denied.

Herrick

, 914 F.2d at 230. Essentially, Grissom merely directs us

to treat a petition filed IFP as if it were a non-IFP petition

filed at the time of the payment of any required filing fee for11

purposes of applying Rule 4(a). G rissom

, however, does not direct

us in our more basic inquiry of when a petition filed IFP was

actually filed for purposes of determining the applicability of the

AEDPA.

Our prior decisions indic ate that Spotville’s petition was

filed, for purposes of determining the applicability of the AEDPA,

in July 1995 when he tendered the papers to the prison authorities

for mailing to the district court, and not upon payment of a filing

fee subsequently required after his IFP status was denied. The

policy of leniency afforded pro se prisoner litigants because of

their lack of ability to control the processing of their petitions

supports this conclusion. Therefore, we hold that a pro se

prisoner’s habeas petition is filed, for purposes of determining

the applicability of the AEDPA, when he delivers the papers to

prison authorities for mailin g. Accordingly, we REVERSE the

district court’s dismissal of the habeas corpus petition and REMAND

for further proceedings.