## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 29 1999 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. STEVEN GRAY,

Defendant-Appellant. No. 98-6043

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

(D.C. No. CIV-97-744-A)

Submitted on the briefs: Steven Gray, Pro Se. Patrick M. Ryan, United States Attorney, Frank Mich ael Ringer, Assistant U.S. Attorney, Oklahoma City, Oklahoma, for Plaintiff-Ap pellee.

Before PORFILIO , McKAY , and LUCERO , Circuit Judges.

LUCERO , Circuit Judge.1 After examining the briefs and appellate record, th is panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without ora l argument. -2- Two issues, the claimed misapplication of the priso n mailbox rule to the filing of a motion pursuant to 28 U.S.C. § 2255 andthe effectiveness of counsel at the guilt and sentencing phases of appellant’s p roceedings, are brought to us for resolution. We conclude that in holding appell ant’s motion untimely, the district court misapplied the mailbox rule because the facility in which appellant was incarcerated maintains an inadequate system forprocessing legal mail. Nonetheless, we affirm the district court’s denial of appellant’s motion because he failed to demonstrate that his counsel was ineffective. 1 Appellant Steven Gray pleaded guilty in February 19 95 to conspiring “to possess with intent to distribute and to distri bute 15 [later corrected to 14] ounces of cocaine base, ‘crack’, a Schedule II cont rolled substance, in violation of Title 21, United States Code, Section 841(a)(1). ” I R., Indictment at 1. Appellant was sentenced, inter alia, to 151 months’ imprisonment based in part on the enhancement applicable to drug crimes involving crack cocaine. He did not take a direct appeal, and he is currently incarcerated in the Federal Correctional Institution in El Reno, Oklahoma. Proceeding pro s e, appellant mailed the present motion seeking to vacate, set aside, or correct his sentence pursuant to 28 U.S.C.2 There is a dispute regarding the exact date of mail ing.

3 We grant appellant’s motion to file a reply brief. -3- § 2255 in April of 1997. 2 The district court denied the motion as untimely on the basis that the motion should have been filed before April 24, 1997, see United States v. Simmonds , 111 F.3d 737, 746 (10th Cir. 1997), but was recei ved by the court clerk on April 30. The district court reject ed appellant’s argument that the date of filing should be considered the day he alle gedly mailed his motion, April 21, 1997, because he used the prison’s regular mail system rather than its legal mail system. Alternatively, the district court con cluded that appellant’s claims fail on the merits. We previously granted appellan t’s request for a certificate of appealability. 3

I Because appellant’s conviction became final in 1995 , he had one year from the April 24, 1996, effective date of the Antiterro rism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, in which to file his § 2255 motion. See Simmonds , 111 F.3d at 746. According to the certificate of service attached to the motion, appellant placed hi s motion “in the institution’s internal mailbox, first-class postage prepaid, on April 21, 1997, for filing with the Clerk, United States District Court.” I R., Doc. 3 9. However, the envelope containing the motion was postmarked April 29, and stamped as received by the4 The rule created in Houston and interpreted in Leonard applied to the

filing of notices of appeal, and derived from the f act that, unlike counseled

(continued...) -4- court clerk on April 30, and the motion was not fil ed by the district court until May 6. In responding to the motion, the governmentargued that it was untimely because it was not filed (or received) by the distr ict court prior to the end of the one-year limitations period. The government also c ontended that appellant was not entitled to the benefit of the prison mailbox r ule, in which the date of filing is the date a prisoner delivers legal mail to prison a uthorities for forwarding to the court clerk, see Houston v. Lack , 487 U.S. 266, 274-76 (1988), because he used the institution’s regular mail system rather than i ts legal mail system. Relying on United States v. Leonard , 937 F.2d 494, 495 (10th Cir. 1991), the district court agreed and held that the motion was not timely file d. On appeal, appellant contends he should receive the benefit of the priso n mailbox rule because the legal mail system used at El Reno does not log in a ll legal mail.
In Leonard , we held that where a prison maintains a legal mai l system separate from its regular mail system, a prisoner m ust use the legal mail system to be entitled to the benefit of the mailbox rule. See 937 F.2d at 495 (“A pro se prisoner who fails to take advantage of the special filing rule applicable to notices of appeal posted through the legal mail system fore goes the benefits of that system.”). 4 Our analysis relied on Houston ’s reasoning that “the prison’s legal4 (...continued)

litigants who may take measures to ensure timely fi lings, “a prisoner acting pro se has no choice but to entrust his mail to prison off icials and cannot adequately follow up on misdirected mail.” Leonard , 937 F.2d at 495. Courts including this one have extended the rule to a variety of other si tuations involving the timeliness of pro se prisoner filings, see, e.g. , Dunn v. White , 880 F.2d 1188, 1190 (10th Cir. 1989) (applying rule to objections to magistrate ju dge’s report in civil rights case), including the filing of habeas corpus petiti ons under 28 U.S.C. §§ 2254 and 2244(d), see Hoggro v. Boone , 150 F.3d 1223, 1226 n.3 (10th Cir. 1998); see also Nichols v. Bowersox , 172 F.3d 1068, 1074-77 (8th Cir. 1999) (en banc); Spotville v. Cain , 149 F.3d 374, 377 (5th Cir. 1998); Burns v. Morton , 134 F.3d 109, 112-13 (3d Cir. 1998). Because the concerns over aprisoner’s ability to ensure timely filing apply equally to a § 2255 motion, we see no reason why it should not apply here, given the proper circumstances. The go vernment does not argue to the contrary. -5- mail system procedures, by which mail is logged in at the time and date it is received, provide a ‘bright line rule’ for determin ing the date of a pro se prisoner’s ‘filing.’” Id. Implicit in both Houston ’s and Leonard ’s analyses is the understanding that legal mail systems automatically log in all legal mail through relatively simple, straightforward procedures. Cf. Koch v. Ricketts , 68 F.3d 1191, 1193 (9th Cir. 1995) (“ Houston assumed that a logging procedure was not only available for regular first class mail, but was als o automatic.”). It is the existence of such procedures that led to the Court’s adoptionof the mailbox rule to reduce disputes over when a pro se prisoner’s papers are d eemed filed: [T]he rejection of the mailbox rule in other contexts has been based in part on concerns that it would increase disputes and uncertainty over when a filing occurred and that it would put a ll the evidence about the date of filing in the hands of one party. These administrative concerns lead to the opposite conclu sion here. The-6-

pro se prisoner does not anonymously drop his notic e of appeal in a public mailbox—he hands it over to prison authoriti es who have well-developed procedures for recording the date an d time at which they receive papers for mailing and who can readilydispute a prisoner’s assertions that he delivered the paper o n a different date. Because reference to prison mail logs will generall y be a straightforward inquiry, making filing turn on the date the pro se prisoner delivers the notice to prison authorities for mailing is a bright-line rule, not an uncertain one.
Houston , 487 U.S. at 275 (citation omitted). The legal mail system in force at El Reno does not satisfy Houston ’s and Leonard ’s implicit understanding that prison authorities l og in all legal mail at the time it is received. As explained by its inmate sy stems manager, “[l]egal mail may be sent from this institution using certified m ail or regular mail. Only legal mail sent by certified mail would be recorded.” I R., Doc. 48, Ex. A at 1. Thus, the only time legal mail is logged in is when the p risoner pays the extra mailing fee to send it by certified mail, a practice the Ni nth Circuit has found to be questionable. See Koch , 68 F.3d at 1193 (“There was no logging procedure available to Koch that did not involve an additiona l fee [through certified, registered or insured mail]. Yet Koch still faced the obstacles that motivated the Court to adopt the Houston rule in the first place: lack of control over the progress of this mailing, and the potential for int erference by prison officials whose interests are adverse to the prisoner bringin g a § 1983 suit.”).5 It may well avoid this tack due to potential access -to-court problems.

Although not directly analogous, an indigent prison er’s right of access to the courts does not require provision of unlimited free postage for sending legal mail. See Twyman v. Crisp , 584 F.2d 352, 359 (10th Cir. 1978). Nonetheless, we are unaware of any case law permitting an institution t o require use of a form of mailing more expensive than first class mail before the mailbox rule applies to an inmate’s legal mail. -7- The government does not argue that it can permissib ly require an inmate to pay the additional costs applicable to certified ma il before the inmate can benefit from the mailbox rule, 5 but contends that El Reno utilizes another adequat e procedure to record the mailing of noncertified mai l. This procedure provides that the following notification will be placed on t he envelope of any noncertified legal mail:
P.O. Box 1000 El Reno, Oklahoma 73036 Date ____________ The enclosed letter was processed through special m ailing procedures for forwarding to you. The letter has been neitheropened nor inspected. If the writer raised a question or prob lem over which [this] facility has jurisdiction, you may wish to r eturn this material for further information and clarification. If the writer enclosed correspondence for forwarding to another addressee, please return the enclosure to the above address. I R., Doc. 48, Ex. A at 1-2. According to El Reno’ s inmate systems manager, “[t]he date the envelope was mailed from the institution would be placed in the above notification.” Id. at 2 (emphasis added).6 We note that while the government has explained how the El Reno

procedures for handling legal mail work, it has notattempted to explain why the institution utilizes such seemingly convoluted proc edures. On the other hand, appellant has not explained why he did not use the legal mail system.

7 This conclusion makes it unnecessary for us to dete rmine whether Leonard was good law at the time appellant mailed his moti on. For purposes of consistency, we have presumed that Leonard ’s restriction on the application of the mailbox rule, which involved a notice of appeal, wo uld apply equally to the (continued...) -8- While we do not entirely understand the purpose of this notification, we conclude that it does not necessarily indicate the date on which legal mail is presented to prison authorities, which is the perti nent information with respect to the mailbox rule, because the only date recorded is the date of mailing

. Moreover, it does not render determination of the d ate of mailing a “straightforward inquiry” as Houston anticipated, but instead relies on the fortuity of the court preserving the envelope containing a prisoner’s legal mail. 6 We conclude that because El Reno’s legal mail syste m does not provide a log or other record of the receipt by prison author ities of all legal mail sent from the facility, it does not meet the implicit requirements of Houston and Leonard

. Appellant therefore should not be barred under Leonard from receiving the benefit of the mailbox rule. Because the only evid ence of the date appellant gave his motion to prison authorities for mailing is his certificate of service, which contains a declaration in compliance with 28 U.S.C. § 1746, that he did so on April 21, appellant’s motion was timely. 77 (...continued)

instant § 2255 motion. However, when the Federal Rules of Appellate Procedure essentially codified the Houston rule in 1993 in Rule 4(c), see Advisory Committee Notes regarding 1993 Amendment, they may have superseded Leonard. That rule, which was unchanged at the time of the r elevant events here, provided as follows: If an inmate confined in an institution files a not ice of appeal in either a civil case or a criminal case, the notice of appeal is timely filed if it is deposited in the institution’s inter nal mail system on or before the last day for filing. Timely filing may be shown by a notarized statement or by a declaration (in complia nce with 28 U.S.C. § 1746) setting forth the date of deposit an d stating that firstclass postage has been prepaid. Rule 4(c) (effective December 1, 1993). The Ninth Circuit concluded that this rule essentially superseded its case law analogous to Leonard

. See Koch , 68 F.3d at 1193; see also Thomas v. Gish , 64 F.3d 323, 325 (7th Cir. 1995). As written, the rule does not require use of any particular mai l system as long as there is a proper statement or declaration indicating timely d eposit with prison authorities. Effective December 1998, Rule 4(c) was further amen ded to add a limitation similar to that provided by Leonard . The following sentence was added in between the two sentences quoted above (along with editorial changes to the second sentence): “If an institution has a system d esigned for legal mail, the inmate must use that system to receive the benefit of this rule.” Rule 4(c) (effective December 1, 1998); see also Nichols , 172 F.3d at 1077 n.5. -9- II We turn to the merits. Appellant contends his coun sel was constitutionally ineffective during his plea colloquy and at sentenc ing for essentially the same reason—for failing to put the government to its bur den of proving that the conspiracy for which appellant was convicted involv ed the form of cocaine known as “crack,” on which appellant’s sentence was based , instead of cocaine powder.-10-

Because the sentence for crack is significantly sti ffer than for cocaine powder,

see, e.g. , United States v. Brooks , 161 F.3d 1240, 1247 (10th Cir. 1998) (noting that “for purposes of calculating a defendant’s bas e offense level, the Sentencing Guidelines equate one gram of crack to 100 grams of powder cocaine”), and the government has the burden at sentencing of proving the drug involved, see United States v. Glover , 97 F.3d 1345, 1347 (10th Cir. 1996); United States v. James , 78 F.3d 851, 858 (3d Cir. 1996), appellant contends his counsel was ineffective for failing to put the government to its burden. See Glover , 97 F.3d at 1349. Appellant also argues that his counsel’s deficient performance at the plea colloquy somehow made his plea involuntary. To prove his counsel was constitutionally ineffecti ve, appellant must show that his counsel’s performance was deficient and he was prejudiced by the deficiency. See Strickland v. Washington , 466 U.S. 668, 687 (1984); Glover , 97 F.3d at 1349-50. To the extent appellant conten ds his counsel’s ineffectiveness made his guilty plea involuntary, h e must show that had counsel performed effectively, he would not have pleaded gu ilty and would have proceeded to trial. See Hill v. Lockhart , 474 U.S. 52, 58-59 (1985). To prevail in his contention that counsel should have advised him of a potential defense, appellant must show that the defense likely would have prevailed at trial. See id.
at 59.8 Prior to and at the plea hearing, appellant admitte d he knew that

there was a ten-year mandatory minimum for convicti on under that count of the indictment. -11- Appellant was convicted of conspiring to possess an d distribute a controlled substance. See 21 U.S.C. §§ 841(a), 846. His conviction was not predicated on whether the particular controlled sub stance was crack or cocaine powder, see § 841(a); that distinction is only relevant for se ntencing purposes under § 841(b)(1)(A) and U.S.S.G. § 2D1.1. Cf. Glover , 97 F.3d at 1347 (discussing difference between conviction for methamphetamine and sentencing for particular type of methamphetamine). Appellantadmits that the substance involved was either crack or cocaine powder, and he does not contend that he would have pleaded innocent had his counsel not “fa iled to object to the ambigous [sic] terms of the factual basis of the plea during the colloquy.” Appellant’s Mem. of Law in Supp. of Mot. for Certificate of App ealability at 10. Although appellant contends that his counsel failed to advis e him of the mandatory minimum sentence for a conviction under Count One o f the indictment—an allegation belied by the record 8 —he does not allege he would not have pleaded guilty had he known of the disparate sentences for crack and cocaine powder. We thus reject appellant’s claim that his counsel’s failure to request the government preliminarily to prove a sentencing matt er somehow made his plea involuntary. See Hill , 474 U.S. at 58.9 Later at the plea hearing when discussing the factu al basis for the

plea, the parties and court used the words “cocaine base” and “cocaine” as well as “crack.” In light of appellant’s earlier explicit admissions that the substance was “crack,” this later colloquy does not undermine the evidence that it was crack. -12- At sentencing, the government has the burden of pro ving the type of drug involved to enhance a sentence over that provided by the conviction itself. See Glover , 97 F.3d at 1347. Although appellant’s counsel di d not put the government to its burden at sentencing, by that tim e it was too late. Count One of the indictment specified “cocaine base, ‘crack,’” a nd appellant pleaded guilty to that count. Earlier, he had admitted in his Petiti on to Enter Guilty Plea that he had conspired to possess and distribute “crack coca ine base (crack),” I R., Doc. 31 at 7, and admitted at his plea hearing that he dealt with crack, see I R., Doc. 48, Ex. B at 5-6. 9 These admissions relieve the government of any bu rden it had at sentencing to show that the drug involved was crack. Cf. Glover , 97 F.3d at 1347 (“We emphasize that neither the indictments no r the pleas in this case went beyond the requisite statutory elements by specifyi ng the type of methamphetamine involved; if they had, subsequent ( re)litigation of the issue might well have been precluded.”) (citations omitted); see also United States v. Bush , 70 F.3d 557, 562-63 (10th Cir. 1995) (defendant’s admissions in plea agreement and at plea hearing and trial of co-consp irators sufficient to support sentence based on crack).10 We emphasize that, even though appellant is challen ging the ultimate

effect of counsel’s assistance on his sentence, we are examining counsel’s performance at the guilty plea stage. We are not d ealing with a pure sentencing matter as we were in Glover , where counsel failed to put the government to its burden at sentencing, and we therefore did not requ ire the appellant to prove his conviction was based on the drug producing the less er sentence to prove prejudice. See Glover , 97 F.3d at 1349-50. -13- Perhaps appellant argues that his counsel was ineff ective in recommending that he plead guilty to Count One as written, there by admitting a sentencing factor not necessary for conviction and which in turn reli eved the government of its burden at sentencing. If that be the case, it is appellant’s burden to prove counsel’s deficient performance prejudiced him, see Strickland , 466 U.S. at 687. Because he claims that he should not have been sent enced for possession of crack, he must prove that the drugs central to his conviction were not crack, cf. Hill , 474 U.S. at 59 (where ineffectiveness claim based o n failure to advise of potential defense, prejudice inquiry turns on likelihood of success of defense). 10 Having failed to claim the existence of evidence that the drug involved was not crack, appellant cannot meet the prejudice prong of his in effective counsel claim. Although the district court incorrectly held that appellant’s motion was untimely, it correctly found that his motion fails on the merits. Therefore, the district court’s judgment is AFFIRMED

.