NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

CURTIS CONOVER, : Civil Action No. 11-1614 (JBS)

: 

Petitioner, :

:

v. : OPINION AND FINDINGS OF FACT

: ON LIMITED REMAND

UNITED STATES OF AMERICA, :

et al., :

:

Respondents. :

APPEARANCES:

CURTIS CONOVER, Petitioner pro se

#31462-160

F.C.I. Fort Dix

P.O. Box 2000

Fort Dix, New Jersey 08640

SIMANDLE, Chief Judge

This matter comes before the Court by remand from the 

United States Court of Appeals for the Third Circuit, “for the 

limited purpose of determining when Petitioner deposited his 

Notice of Appeal in the internal mail system at FCI Fort Dix and 

any other facts that might be relevant to our appellate 

jurisdiction.” (Docket Entry # 12.) On May 24, 2013, this 

Court issued an Order to Show Cause directing the parties to 

show cause in writing as to whether Petitioner’s Notice of 

Appeal was timely filed pursuant to the “prison mailbox rule.” 
2

(Dkt. # 13.) Petitioner did not respond to the Court’s May 24th 

Order, but Respondents did provide the Court with an answer and 

supporting documentation as directed. (Dkt. ## 14, 15.)

For the reasons set forth below, the Court finds that the 

prison mailbox rule does not operate in this instance, and that 

the Notice of Appeal was not timely filed.

I. BACKGROUND

On March 23, 2011, Petitioner, Curtis Conover, filed a 

habeas petition under 28 U.S.C. § 2241, in the United States 

District Court for the District of New Jersey, challenging his 

sentence computation by the Bureau of Prisons (“BOP”), and 

seeking fifteen (15) months jail credit towards his federal 

sentence. (Dkt. # 1.) Thereafter, on February 23, 2012, this 

Court denied the habeas relief Petitioner sought. (Dkt. ## 7, 

8.)

Petitioner filed a Notice of Appeal, bearing an unsigned 

Certificate of Service dated March 2, 2012, which was received 

by the Clerk of the U.S. District Court and entered on the 

docket on January 17, 2013. (Dkt. # 9.) Petitioner’s Notice of 

Appeal was contained in an envelope properly addressed to the 

Clerk of Court, with proper postage, bearing the postmark 

“Trenton NJ 085 - 14 JAN 2013 PM61.” (Dkt. # 9 at p.3.) The 

unsigned Certificate of Service indicated two addressees, the 
3

Clerk of Court for the United States District Court in Camden, 

New Jersey, and the Office of the United States Attorney in 

Camden, New Jersey. While the Clerk’s Office received the 

Notice of Appeal on January 17, 2013,1 as indicated above, the 

United States Attorney’s Office did not receive any mailed 

Notice of Appeal from Petitioner. In particular, the Assistant 

United States Attorney (“AUSA”) assigned to this matter avers 

that no mailed copy of the Notice of Appeal was received at any 

time in 2012, or in January 2013. Rather, the AUSA learned of 

the Notice of Appeal on January 18, 2013, by Notice of 

Electronic Filing for Docket # 9. (Declaration of Irene E. 

Dowdy, AUSA, at ¶¶ 2-4.)

On May 21, 2013, the Third Circuit issued an Order 

remanding this case to this Court “for the limited purpose of 

determining when Petitioner deposited his Notice of Appeal in 

the internal mail system at FCI Fort Dix and any other facts 

that might be relevant to determine appellate jurisdiction.” 

(Dkt. # 12.) The Third Circuit noted that Petitioner was 

required to file his notice of appeal by April 24, 2012 in order 

to confer appellate jurisdiction. See Fed.R.App.P. 4(a)(1)(B) 

(notice of appeal must be filed within 60 days of entry of 

 

1 There is no record on CM/ECF that Petitioner’s Notice of Appeal 

was received by the Clerk of Court on any date in 2012, or 

earlier than January 17, 2013.
4

judgment). However, the Third Circuit observed a discrepancy 

between the March 2, 2012 date on the Notice of Appeal (within 

the 60-day filing period) and the January 2013 postmark on the 

envelope containing the Notice of Appeal. Upon remand, this 

Court issued an Order, on May 24, 2013, directing the parties to 

show cause in writing as to whether Petitioner’s Notice of 

Appeal was timely filed pursuant to the “prison mailbox rule.” 

(Dkt. # 13.)

On June 17, 2013, Respondents filed a reply to the Court’s 

Order to Show Cause, with declarations and exhibits from FCI 

Fort Dix officials. (Dkt. ## 14, 14-1, 14-2, 14-3, 14-4, and 

14-5.) The first declaration from Sonia Diaz-N’Diaye, 

Supervisory Correctional Systems Specialist at FCI Fort Dix, 

identified the procedures at FCI Fort Dix for outgoing inmate 

mail, including both general correspondence and special/legal 

mail. (Dkt. ## 14-1, 14-2.) Ms. Diaz also provided a record 

showing Petitioner’s use of special/legal mail during pertinent 

time periods. (Dkt. # 14-3.)

Ms. Diaz relates that federal inmates may send outgoing 

mail under two procedures: (1) general correspondence, or (2) 

“special/legal mail.” Outgoing special/legal mail includes 

correspondence sent by federal inmates to the United States 

Courts, U.S. Attorneys, attorneys, federal and state law 
5

enforcement officers, members of the federal or state executive 

and legislative branches of government, and representatives of 

the news media. Outgoing general correspondence includes any 

mail other than special/legal mail. (Dkt. # 14-1 and 14-2, Diaz 

Declaration at ¶ 4, Exhibit A – July 1, 2011 Institution 

Supplement on Mail Management.) See also 28 C.F.R. § 542.2(a), 

(c); Bureau of Prisons (“BOP”) Program Statement 5265.14, 

Correspondence at 3-4.

Ms. Diaz also notes that, because FCI Fort Dix is a low 

security level facility, inmates may seal all of their outgoing 

mail and that mail is sent out without being opened or inspected 

by BOP staff. (Dkt. # 14-1, Diaz Decl. at ¶ 7.) See also 28 

C.F.R. § 540.14(c)(1); BOP Program Statement 5265.14 at 8.

FCI Fort Dix is comprised of two compounds housing inmates 

in the general population. There is only one Mail Room serving 

both compounds, which is located in the Core Services Building. 

The Mail Room operates Monday through Friday, from 7:30 AM to 

4:00 PM, excluding federal holidays. (Dkt. # 14-1, Diaz Decl. 

at ¶ 8.) 

There is a mail depository for outgoing general 

correspondence at each inmate housing unit. To utilize outgoing 

general correspondence, an inmate seals his mail item and places 

it in his housing unit’s mail depository. Each weekday morning 
6

(Monday through Friday), the Morning Watch Compound Officer 

collects outgoing mail from the general correspondence mail 

depositories in each housing unit and delivers the collected 

outgoing mail to the vestibule of the Compound Control Center 

for safekeeping until the Mail Room staff arrive. The Mail Room 

staff retrieves the outgoing general correspondence mail from 

the vestibule by 7:30 AM, and takes that mail to the Mail Room 

in the Core Services Building. Then all outgoing mail is taken 

by the Mail Room staff to the local United States Post Office by 

9:00 AM each day, Monday through Friday, excluding federal 

holidays. FCI Fort Dix does not maintain a log or any other 

record of outgoing general correspondence sent by inmates. 

(Id., ¶¶ 9, 12 and Ex. 1 at p. 4.)

Inmates at FCI Fort Dix also may send outgoing mail 

addressed to the courts and attorneys under the special/legal 

mail procedure. An inmate must hand deliver his outgoing 

special/legal mail to his Unit Team. The Unit Team enters the 

outgoing special/legal mail item in a unit logbook, which 

records the date, inmate name and register number, addressee, 

housing unit number and staff signature. Unit staff then 

delivers the special/legal mail to designated mail receptacles 

located by the Compound Control Center vestibule. These 

designated receptacles are different than those receptacles used 
7

for outgoing general correspondence mail. The Mail Room staff 

retrieves the special/legal mail from the designated receptacles 

by 7:30 AM, and takes the mail to the Mail Room where it is 

stamped as “special/legal mail.” The Mail Room staff then 

delivers the outgoing special/legal mail, together with the 

outgoing general correspondence mail, to the U.S. Post Office by 

9:00 AM, Monday through Friday, excluding federal holidays. 

(Id., ¶¶ 10, 12, Ex. 1 at p. 4.)

Certified mail also is made available to FCI Fort Dix 

inmates. A logbook is maintained by staff which records each 

item sent by inmates using certified mail. (Id., ¶¶ 6, 11.) 

There is no record or suggestion that Petitioner used certified 

mail for the mailing of his Notice of Appeal.

FCI Fort Dix inmates may purchase postage stamps at the 

inmate commissary. 28 C.F.R. § 540.21. In this regard, 

Respondents attach a declaration by Nakia Grimes, Trust Fund 

Supervisor at FCI Fort Dix. Ms. Grimes reviewed and attached 

records of Petitioner’s purchase of stamps at FCI Fort Dix 

during the relevant time period, namely, the BOP’s TRUFACS 

system (Trust Fund Accounting and Commissary System). In 

particular, Ms. Grimes attests that the TRUFACS system shows 

that Petitioner purchased stamps between January 1, 2011 and May 

28, 2013, as follows:
8

05/16/2011 30 one-cent stamps

06/13/2011 one $9.20 stamp book (20 stamps)

08/02/2011 five $.46 stamps

09/20/2011 one $9.20 stamp book (20 stamps)

10/13/2011 three $.46 stamps

11/23/2011 two $.46 stamps

12/14/2011 three $.46 stamps

01/26/2012 two $.46 stamps

02/16/2012 three $.46 stamps

(Dkt. # 14-4, Grimes Decl. at ¶ 2, and Dkt. # 14-5, Ex. A to 

Grimes Decl.)

Petitioner has been confined at FCI Fort Dix in Unit 5711 

since March 26, 2010. The logbooks for special/legal mail sent 

by inmates in Unit 5711 reveals that Petitioner used 

special/legal mail on March 18, 2011, to send two items, namely, 

to the “U.S. District Court” and the “US Attorney District of 

NJ.” (Diaz Decl. at ¶ 13; Ex. 2 [Unit 5711 logbooks], p. 1.) 

The Court takes judicial notice that the petition filed in this 

matter on March 23, 2011, contained a Certificate of Service 

signed by Petitioner, in which Petitioner certified that he 

mailed his petition via first class prepaid postage from the FCI 

Fort Dix on March 17, 2011, to the United States District Court 

in Camden, New Jersey, and to the U.S. Attorney’s Office in 

Camden, New Jersey. (Dkt. # 1 at 10.)

It does not appear that Petitioner used special/legal mail 

again until January 2013, when he sent out several items via 

special/legal mail. Namely, on January 23, 2013, Petitioner 
9

sent legal mail to Chief Richard Nunes at the Newark Municipal 

Court; on January 30, 2013, Petitioner sent two items of legal 

mail, one to the Clerk of the United States Court of Appeals in 

Philadelphia, PA, and another to the Clerk of the United States 

District Court in Camden, New Jersey; and finally, on January 

31, 2013, Petitioner sent legal mail to the Federal Public 

Defender’s Office in the Northern District of Ohio, Cleveland, 

Ohio. (Diaz Decl. at ¶ 14, Ex. 2 at p. 7.)

There is no record in the special/legal mail logbooks for 

Petitioner’s Unit that Petitioner sent any item by special/legal 

mail in February, March or April 2012. (Diaz Decl. at ¶ 13, Ex. 

2 at pp. 2-6.)

II. DISCUSSION

As stated above, this case was remanded to this Court “for 

the limited purpose of determining when Petitioner deposited his 

Notice of Appeal in the internal mail system at FCI Fort Dix and 

any other facts that might be relevant in determining appellate 

jurisdiction.” (Dkt. 12.) In this case, Petitioner was 

required to file his Notice of Appeal by April 24, 2012, in 

order to confer appellate jurisdiction upon the United States 

Court of Appeals for the Third Circuit. See Fed.R.App.P. 

4(a)(1)(B) (notice of appeal must be filed within 60 days of 

entry of judgment). 
10

A prisoner’s notice of appeal in a civil or criminal case 

is “timely if it is deposited in the institution’s internal mail 

system on or before the last day for filing.” Fed.R.App.P.

4(c)(1); Flowers v. Phelps, 2013 WL 718752, *3, n. 4 (3d Cir. 

Feb. 28, 2013). The “prison mailbox rule”, which deems an 

inmate’s filing as filed on the date it is delivered to prison 

officials for mailing, was recognized by the Supreme Court in 

Houston v. Lack, 487 U.S. 266 (1988). See Houston, 487 U.S. 

270; Pabon v. Mahoney, 654 F.3d 385, 391 n. 8 (3d Cir. 2011); 

Pearson v. Prison Health Service, No. 11-3897, 2013 WL 870337, 

*2 (3d Cir. Mar. 11, 2013). 

In Houston, the Supreme Court examined the unique 

circumstances confronting a prisoner proceeding pro se, such as 

an inmate’s inability to take steps other litigants can to 

monitor the processing of a notice of appeal and ensure that the 

clerk receives and stamps it within the appeal period. Houston, 

487 U.S. at 270-73. The Supreme Court also observed that if 

there is a delay attributable to prison authorities rather than 

postal procedures, a prisoner is unlikely to be able to prove 

that the late filing resulted from the prison’s delay in 

depositing the appeal in the mail or the clerk’s failure to 

properly stamp the notice when it is received. Id. Thus, the 

Supreme Court created “a bright-line rule, not an uncertain 
11

one,” by holding that “the notice of appeal was filed at the 

time the habeas petitioner delivered it to the prison 

authorities for forwarding to the court clerk,” where there are 

established prison procedures for recording the date and time at 

which papers are received by prison officials in the prison’s 

mail room. Id. at 275-76.

It is Petitioner’s burden to demonstrate that there is 

jurisdiction over his appeal and that Rule 4(c)(1) applies to 

him. See Fed.R.App.P. 4(c)(1) (“Timely filing may be shown by a 

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

notarized statement, either of which must set forth the date of 

deposit and state that first class postage has been prepaid.”); 

Porchia v. Norris, 251 F.3d 1196, 1198 (8th Cir. 2001) (“[A]n 

appellant must prove that the necessary preconditions to the 

exercise of appellate jurisdiction—including the timely filing 

of a notice of appeal—have been fulfilled.”). See also See

Martin v. Attorney General of U.S., 466 F. App’x 106, 107 (3d 

Cir. 2012) (prison mailbox rule not applied where petitioner’s 

certificate of mailing did not state that he mailed it to the 

court or gave it to prison authorities for mailing to the 

court); Bond v. VisionQuest, 410 F. App’x 510, 515 (3d Cir. 

2011) (no presumption of the prison mailbox rule where Bond 

provided “no evidence—and does not even directly state—that he 
12

provided the complaint to prison authorities to mail to the 

District Court.”); Council v. Nash, 400 F. App’x 680, 682 (3d 

Cir. 2010) (petitioner did not submit a declaration or notarized 

statement as required under Rule 4(c)(1)).

In this instance, the Third Circuit commented that, except 

for the January 2013 postmark, Petitioner’s Notice of Appeal 

otherwise appears to comply with the “facial requirement of 

Fed.R.App.P. 4(c), as it includes an unsworn declaration 

(pursuant 28 U.S.C. § 1746) and indicates that first-class 

postage was prepaid.” Accordingly, the Court of Appeals 

remanded this matter for this Court to determine whether 

Petitioner’s Notice of Appeal was timely filed; more precisely, 

whether Petitioner deposited his Notice of Appeal in FCI Fort 

Dix’s prison mail system on or about March 2, 2012, as indicated 

on his unsigned Certificate of Service.

Petitioner has provided no information in response to the 

Order to Show Cause. Nor has Petitioner raised any argument in 

reply to the Respondents’ answer to this Court’s May 24, 2013 

Order. In short, Petitioner advanced no argument that Rule 

4(c)(1) should apply to the filing of his notice of appeal. 

Thus, the only evidence to support a timely filing is 

Petitioner’s unsigned Certificate of Service that accompanied 

his Notice of Appeal. 
13

In contrast, Respondents provided documentation and 

information to suggest that Petitioner did not send his Notice 

of Appeal on or about March 2, 2012. First, in discussing the 

internal mail system at FCI Fort Dix regarding both inmate 

general correspondence procedures and special/legal mail 

procedures, Respondents contend that Petitioner did not utilize 

the special/legal mail procedure because there was no record of 

it in the Unit logbooks for the pertinent months of February, 

March and April 2012.

2 It was plain that Petitioner knew of the 

special/legal mail procedures and used it on other occasions. 

For instance, Petitioner used the special/legal mail service 

when filing his petition in this case. He also used it on three 

occasions in other legal matters in January 2013, unrelated to 

this action. Therefore, because there was no log entry for 

special/legal mail service of the Notice of Appeal by 

Petitioner, Respondents contend that Petitioner used the 

outgoing general correspondence procedure.

Second, Respondents argue that if Petitioner used the 

inmate general correspondence procedure to mail his Notice of 

Appeal, it was done out of time, sometime in mid-January 2013. 

Again, based on the internal mail system at FCI Fort Dix for 

 

2 The Court denied the habeas petition in this matter on February 

23, 2012. Petitioner had 60 days from this date, or until April 

24, 2012, to timely file his notice of appeal pursuant to 

Fed.R.App.P. 4(a)(1)(B).
14

outgoing general correspondence, Respondents comment that, if 

Petitioner used the general correspondence procedure in mailing 

his Notice of Appeal on the date of March 2, 2012, as 

purportedly indicated by the unsigned Certificate of Service, 

under the usual practices of the FCI Fort Dix Mail Room, the 

mail would have been collected on Monday, March 5, 2012, by the 

Morning Watch Compound Officer, taken to the Control Center 

vestibule, picked up by the Mail Room staff, and then delivered 

to the U.S Post Office by 9:00 AM on March 5, 2012. The 

ordinary course of mail delivery by the U.S. Postal Service is 

typically three to five days. Thus, the Notice of Appeal should 

have been received by the Clerk’s Office between March 8, 2012 

and March 11, 2012. There is no record of the Clerk’s Office 

receiving the Notice of Appeal until January 2013.

Based on the evidence submitted, the Court concludes that 

the prison mailbox rule is not applicable here because there is 

no proof that the Notice of Appeal was deposited as 

special/legal mail with the internal mail system at FCI Fort Dix 

in or about March 2012. The Seventh Circuit observed that 

Fed.R.App.P. 4(c)(1) specifies that, when a prison has a 

particular system designed for legal mailings, the prisoner 

“must use that system to receive the benefit of” the mailbox 

rule. Ingram v. Jones, 507 F.3d 640, 644 (7th Cir. 2007)
15

Petitioner, plainly, did not comply with this requirement. 

There is simply no record of Petitioner using the special/legal 

mail at FCI Fort Dix during the relevant time period for a 

timely Notice of Appeal, namely February, March or April 2012. 

Specifically, the pertinent Unit logbooks show no such entries 

for special/legal mail on behalf of Petitioner during this time. 

Moreover, there are entries in the Unit logbook recording that 

Petitioner used special/legal mail on other unrelated occasions. 

The lack of any entry for Petitioner using special/legal mail 

during the relevant time period strongly suggests that he did 

not use the special/legal mail system when mailing his Notice of 

Appeal. Finally, although “Legal Mail” was typewritten on the 

outside of the envelope containing the Notice of Appeal, the FCI 

Fort Dix mail Room uses a stamp for special/legal mail. 

Thus, the Court finds it highly unlikely that Petitioner 

utilized the special/legal mail system at FCI Fort Dix when 

mailing his Notice of Appeal. Petitioner therefore cannot 

receive the benefit of the prison mailbox rule, and the Court 

must conclude that it was not timely filed under Fed.R.App.P. 

4(c)(1). See Morales v. McEwan, No. EDCV 11-667-GHK (MAN), 2012 

WL 632405, * 5 (C.D. Cal. Jan. 19, 2012) (not applying the 

prison mailbox rule where inmate submitted his petition to 
16

another entity at the prison rather than the prison’s Litigation 

Office as is required). 

Further, this Court determines that Petitioner mailed his 

Notice of Appeal well after the 60-day filing deadline for his 

appeal by the outgoing inmate general correspondence procedures 

at FCI Fort Dix. This conclusion is based on the postmark date 

of January 14, 2013 on the envelope received by the Clerk’s 

Office, and the fact that there is no record of the Clerk’s 

Office having received the Notice of Appeal at any time in 2012. 

Had Petitioner actually mailed his Notice of Appeal on March 2, 

2012, as indicated by the unsigned Certificate of Service, by 

the outgoing inmate general correspondence procedures 

established by FCI Fort Dix, Petitioner’s mail would have been 

collected on March 5, 2012 and delivered to the U.S. Post Office 

the same date, and the normal course of postal delivery would be 

sometime between March 8, 2012 and March 11, 2012. As indicated 

above, there is no record of receipt of the Notice of Appeal by 

the Clerk of the Court in March 2012. The Notice of Appeal was 

not received by the Clerk until January 2013, long after the 60-

day filing deadline on April 24, 2012.

Therefore, without any evidence to prove that the Notice of 

Appeal was deposited as special/legal mail with the established 

internal mail system at FCI Fort Dix, this Court finds that
17

Petitioner cannot rely on the prison mailbox rule for timely 

filing of his Notice of Appeal under Fed.R.App.P. 4(c)(1). The 

January 2013 postmark date is more indicative of the actual date 

of mailing than Petitioner’s unsigned Certificate of Service 

dated March 2, 2012,3 especially where there is no evidence that 

either the Clerk of the Court or the U.S. Attorney’s Office in 

Camden, New Jersey have record of receiving the Notice of Appeal 

at any time in 2012. Accordingly, the Court concludes that the 

Notice of Appeal was filed in January 2013, long after the April 

24, 2012 filing deadline necessary to confer appellate 

jurisdiction over Petitioner’s appeal under Fed.R.App.P. 

4(a)(1)(B).

III. CONCLUSION

For the reasons set forth above, this Court finds no 

evidence to confirm that Petitioner’s Notice of Appeal was 

timely filed under the prison mailbox rule, consistent with the 

requirements of Fed.R.App.P. 4(c)(1). Rather, the January 14, 

2013 postmark stamped on the envelope containing the Notice of 

Appeal shows that the Notice was filed almost nine months after 

the sixty-day deadline for filing a notice of appeal under 

 

3 The Court further notes that when Petitioner filed his habeas 

petition, the Certificate of Service accompanying the petition 

was signed by Petitioner. (Dkt. # 1.) Thus, the lack of 

Petitioner’s signature on the Certificate of Service submitted 

with his Notice of Appeal is significant in suggesting that the 

Notice of Appeal was not mailed on March 2, 2012. 
18

Fed.R.App.P. 4(a)(1)(B), which concluded on April 24, 2012. An 

appropriate order setting forth these findings of facts follows.

_ s/ Jerome B. Simandle 

JEROME B. SIMANDLE, Chief Judge

United States District Court

Dated: August 14, 2013