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IT’S ALL ON YOU, MAN

When Mario Dunham was convicted, his lawyer withdrew without filing a notice of appeal. Mario’s conviction became final on November 16, 2015. His 28 USC § 2255 motion, complaining that his lawyer failed to file a notice of appeal, appeared at the courthouse one year and two weeks later.

Of course, the deadline for a § 2255 motion under 28 USC 2255(f)(1) would have been November 16, 2016. Mario’s mailing envelope had a Nov. 28 postmark. Nevertheless, the district court gave Mario a chance to provide he had mailed it on time.

The Bureau of Prisons offers a “legal mail” system (which it calls “special mail“) to inmates for communications with lawyers, courts and legislators. The legal mail is not inspected by the BOP staff, and the date of delivery to the prison officials for mailing is noted, and becomes a filing date honored by the court system.

Mario did not use legal mail for his § 2255 motion, I suspect because legal mail would have revealed he mailed it well after the court deadline. Obviously, he could not gin up evidence that he had mailed it when he said he had, having nothing more that his naked assertion that he had put it in the housing unit mailbox by November 16th, and somehow the prison did not get that load of mail out for two weeks or so. The district court did not buy it, and last week, the 5th Circuit rejected Mario’s argument as well.

The 5th held that the burden to prove a § 2255 motion was mailed on time always falls on the petitioner. The prisoner’s own statement that he mailed it on time is not good enough. This is why documents sent to the court should always go legal mail. Beyond that, a careful petitioner will always keep one eye on how he or she would prove timely mailing if something goes missing. Being sure the Corrections Officer handling legal mail logs the mailing and asking him or her to note what is being sent (such as “2255 motion” or “objections to report”) or something that would help prove a timely filing of whatever is being sent, is always a good idea. The BOP is supposed to log such things, but being sure it’s done right is only prudent.

In Mario’s case, the court had not just fallen off the turnip truck. It compared the § 2255 filing with all of the other filings Mario had made in the proceeding, and noted that all of them were postmarked within a day or two of the date Mario had written on the filings. The only exception was the § 2255 motion, postmarked 14 days after the date Mario had written in on the signature page.

The Court’s implication that Mario had backdated the petition is pretty clear.

United States v. Duran, Case No. 17-30428, 2019 U.S. App. LEXIS 23717, 2019 WL 3729586 (5th Cir., Aug. 8, 2019)

– Thomas L. Root