This Court's November 4, 1997 memorandum opinion and order addressed the motion to dismiss that had recently been filed by Warden Jerry Gilmore ("Gilmore") in this 28 U.S.C. § 2254
habeas corpus proceeding initiated by the pro se filing of a Petition by Joseph Barnes ("Barnes"). Gilmore's motion was filed on the predicate that Barnes' Petition had been filed too late, and this Court promptly directed Barnes to file a limited response on that timing issue. Barnes has now done so, and this Court finds that his responsive filing suffices to call for the denial of Gilmore's motion to dismiss.
In addition to the text of Barnes' explanatory response, one of the photocopies that he has attached as his Ex. A confirms that he delivered the Petition to the authorities at Pontiac Correctional Center ("Pontiac," where he is serving his sentence) on April 22, 1997 and that on the following day the required postage for the mailing to this District Court's Clerk's Office was paid out of Barnes' trust fund at Pontiac. Barnes' recital of the ensuing events convincingly explains the time lapse between those April dates and the May 15, 1997 date of the "Received" stamp in the Clerk's Office.
But what this Court finds to be ultimately controlling is that under the "mailbox rule" announced in Houston v. Lack, 487 U.S. 266, 101 L. Ed. 2d 245, 108 S. Ct. 2379 (1988) the April 22 and 23 dates themselves suffice to establish the Petition's timeliness.
Although the November 4 opinion refers to one District Court opinion that has rejected an extension of Houston to the habeas situation ( Burns v. Morton, 970 F. Supp. 373 (D. N.J. 1997)) and although this Court is aware of another District Court opinion to the same effect, it will rule otherwise in light of the predominant authority that points in the other direction (see, e.g., In re Sims, 111 F.3d 45, 47 (6th Cir. 1997)(per curiam); Peterson v. Demskie, 107 F.3d 92, 93 (2d Cir. 1997); Parker v. Bowersox, 975 F. Supp. 1251 (W.D. Mo. 1997)).
Because Barnes has thus demonstrated his entitlement to stay in court in the face of a time-bar claim, this Court denies Gilmore's motion to dismiss. As Gilmore has requested at the conclusion of his submission in the event that this Court decided to rule as it now has, Gilmore is ordered to file an Answer addressing the merits of Barnes' claims on or before December 29, 1997.
Milton I. Shadur
Senior United States District Judge
Date: November 26, 1997