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UNITED STATES EX REL. BARNES v. GILMORE

December 29, 1997

UNITED STATES OF AMERICA ex rel. JOSEPH BARNES, Petitioner,
v.
JERRY D. GILMORE, Respondent.



The opinion of the court was delivered by: SHADUR

 Warden Jerry Gilmore ("Gilmore") has filed two motions to follow up on this Court's November 26 denial (in the "Order") of Gilmore's motion to dismiss the 28 U.S.C. § 2254 *fn1" habeas corpus petition ("Petition") brought by Joseph Barnes ("Barnes"), which Gilmore's earlier motion had urged was time-barred:

 
1. a motion to reconsider the Order or, alternatively, to issue an order under Section 1292(b) looking to the possible appealability of the Order; and
 
2. a motion seeking leave to file supplemental authority in support of the first motion.

 On December 24, 1997 this Court granted the second motion (of course) and took the first one under advisement. This memorandum opinion and order now addresses the first motion.

 Gilmore proffers a dual attack on the timeliness of Barnes' Petition, one on the basis that the "mailbox rule" of Houston v. Lack, 487 U.S. 266, 101 L. Ed. 2d 245, 108 S. Ct. 2379 (1988) does not apply to the filing date of habeas petitions and the other on the basis that Barnes paid the filing fee too late, even if the Petition itself had been delivered within the one-year period prescribed by the Antiterrorism and Effective Death Penalty Act of 1996 ("Act"), as construed in Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir. 1996)(en banc), rev'd in other respects 521 U.S. 320, 138 L. Ed. 2d 481, 117 S. Ct. 2059 (1997). Upon reconsideration, this Court continues to reject the first of those propositions, but it finds the second to be persuasive, and hence it grants the motion for reconsideration and dismisses the Petition as time-barred.

 On the first subject, Gilmore's second motion has tendered for this Court's consideration the December 15, 1997 memorandum opinion and order issued by Honorable Paul Plunkett in United States ex rel. Banks v. Barnett, 1997 U.S. Dist. LEXIS 20413, No. 97 C 3388, which rejects the Houston precedent in the habeas context. With all respect to its esteemed colleague Judge Plunkett, this Court is constrained to disagree.

 Although legal analysis is never a matter of the mere counting of noses, it is surely worth observing (as Order at 3 has pointed out) that the only Court of Appeals decision that has dealt directly with the issue to date has signed on affirmatively to Houston's applicability in habeas cases before the District Court ( In re Sims, 111 F.3d 45, 47 (6th Cir. 1997)(per curiam)). In addition, dicta by the Second Circuit ( Peterson v. Demskie, 107 F.3d 92, 93 (2d Cir. 1997)) and the Eighth Circuit ( Miller v. Benson, 51 F.3d 166, 169 n.2 (8th Cir. 1995)) point in exactly the same direction, while no Court of Appeals has gone the other way. As for District Courts, the substantial preponderance of the decisions run the same way (see, e.g., Parker v. Bowersox, 975 F. Supp. 1251, 1253 (W.D. Mo. 1997); Hughes v. Irvin, 967 F. Supp. 775, 778 (E.D. N.Y. 1997)).

 Apart from Judge Plunkett's opinion in Banks, the principal contention of the one or two courts that have held that the date of receipt in the Clerk's Office, rather than the date of delivery to the prison authorities, is the effective "filing" date for habeas petitions is that one year (which is now the habeas limitation period under the Act) is much longer than the 30-day time for appeal of habeas denials that was at issue in Houston, so that a prisoner assertedly doesn't have much need for the benefit of the "mailbox rule." But that approach ignores the basic nature of every statute of limitations as a bright-line rule on which a litigant is entitled to rely: Nothing requires an Illinois personal injury plaintiff (for example) to enter the courthouse before the second anniversary of the tortious event that harmed him or her, although even one day beyond that is as fatal on limitations grounds as a ten-year delay in bringing suit. *fn2"

 There is surely no policy reason that the same bright-line concept (and the same entitlement to rely on it) should not apply to the limitations period for habeas petitions in the selfsame fashion as those things apply to every other statute of limitations. And the strength of the Houston proposition rests on the principle--which is applicable with just as much force to habeas petitions as to the habeas appeal at issue in Houston itself--that a prisoner cannot control the handling of his or her legal mail once it is given to the prison authorities. As Miller, 51 F.3d at 169 n.2 (numerous citations omitted) said in the course of its discussion:

 
A good argument can be made for extending the rule in Houston v. Lack to filings other than notices of appeal. "Houston v. Lack's underlying policy--that of not penalizing pro se prisoners for delays over which they have no control once they have timely delivered notices of appeal to prison authorities--applies with equal force to section 1983 actions." "In fact, prison authorities would have greater incentive to delay the processing of section 1983 suits, since such suits often target prison officials." Other circuits have extended the rule in Houston v. Lack to other pro se prisoner filings.

 Indeed, this very case provides a graphic illustration of just that problem. Barnes delivered his habeas papers to the prison authorities on April 22, 1997 (just within the one-year period prescribed by the Act as construed in Lindh), but some unexplained mishandling after the papers had left Barnes' hands resulted in their being delivered to this District Court substantially later--after some further back and forth, they were not stamped "Received" in the Clerk's Office until May 15 (more than three weeks after Barnes had given them to the prison authorities). If Barnes had tendered them to the authorities say two weeks earlier--fully 15 days before the one-year limitations period ran out, and surely in enough time to allow for any reasonable delay in the mails--and if the same delaying events had ensued, he would have been out of time (and hence totally out of luck) unless he could claim the benefits of the "mailbox rule." And the minute that we depart from an objective standard and instead allow uncontrollable contingencies to control timeliness, the goals of certainty and fairness that underlie the bright-line concept of a statute of limitations are defeated.

 Banks goes on in an effort to support the rejection of the mailbox rule by pointing to part of the language of Rule 3 of the Rules Governing Section 2254 Cases in the United States District Courts ("Section 2254 Rules"), which will be quoted in its entirety here for reasons that will become apparent during the course of this opinion:

 
(a) Place of filing; copies; filing fee. A petition shall be filed in the office of the clerk of the district court. It shall be accompanied by two conformed copies thereof. It shall also be accompanied by the filing fee prescribed by law unless the petitioner applies for and is given leave to prosecute the petition in forma pauperis. If the petitioner desires to prosecute the petition in forma pauperis, he shall file the affidavit required by 28 U.S.C. § 1915. In all such cases the petition shall also be accompanied by a certificate of the warden or other appropriate officer of the institution in which the petitioner is confined as to the amount of money or securities on deposit to the ...

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