Dison v. Whitley

• Decision Date: 09 May 1994
• Docket Number: No. 92-4939,92-4939
• Citation: 20 F.3d 185
• Parties: Roosevelt DISON, Petitioner-Appellant, v. John P. WHITLEY, Warden, Louisiana State Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 185

20 F.3d 185

29 Fed.R.Serv.3d 752

Roosevelt DISON, Petitioner-Appellant, v. John P. WHITLEY, Warden, Louisiana State Penitentiary,

Respondent-Appellee.

No. 92-4939.

United States Court of Appeals, Fifth Circuit.

May 9, 1994.

Roosevelt Dison, pro se.

Stephen M. Henry, Michael Henry, Dist. Attys. Office, Natchitoches, LA, for respondent-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before REAVLEY and JOLLY, Circuit Judges, and PARKER, ^* District Judge.

E. GRADY JOLLY, Circuit Judge:

The pro se in forma pauperis prisoner in this case filed his notice of appeal after the thirty-day period for filing appeals expired. The district court held that the appeal was untimely. We affirm.

I

Roosevelt Dison was convicted of carrying out a contract to kill Charles Rollo, Jr., by shooting Rollo with a shotgun in the driveway of his home in Natchitoches Parish, Louisiana, at 7:30 a.m. on April 15, 1979. Dison confessed to the murder and is currently serving a life sentence in Louisiana state prison.

II

After exhausting his direct and state habeas remedies, Dison filed a habeas corpus petition in federal court alleging that his confession was involuntary and that he should have been allowed to testify at his jury trial regarding his confession. On July 31, 1992, the district court denied Dison's habeas petition on the grounds that Dison's confession was voluntary and that his right to testify did not exist under state law at the time of his trial.

Dison filed an appeal that was received by the district court after the thirty-day period for filing an appeal. ¹ We remanded Dison's case to the district court for a determination of whether Dison timely filed under the exception to the general filed-upon-receipt rule announced by the Supreme Court in Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988). Under Houston, 487 U.S. at 270, 108 S.Ct. at 2382, a prisoner's notice of appeal is deemed timely filed when he delivers the notice to prison officials.

On remand, the magistrate judge found that Dison had delivered his notice of appeal to prison officials on or before August 24, 1992--seven days before the expiration of the thirty-day period--but the envelope had been returned to him because he had sent it via "indigent mail" even though he had sufficient funds to pay the postage. The magistrate judge also found that Dison managed to send the envelope containing his notice of appeal out of the prison for mailing as it was post-marked from Baton Rouge instead of Angola. The magistrate judge concluded that Houston did not apply, and the district court adopted the magistrate judge's findings in holding Dison's appeal untimely.

III

In reviewing requests for federal habeas corpus relief, we review the district court's findings of fact for clear error, but review issues of law de novo. See Barnard v. Collins, 958 F.2d 634, 636 (5th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 990, 122 L.Ed.2d 142 (1993). A timely filed notice of appeal is a jurisdictional prerequisite to our review. Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 561, 54 L.Ed.2d 521 (1978). We hold that neither Dison's delivery of his unposted notice of appeal to the prison officials nor his delivery to his agent outside the prison constitute timely filing.

In Thompson v. Rasberry, 993 F.2d 513, 514 (5th Cir.1993), we held that the Houston exception to the filed-upon-receipt rule [did] not relieve a prisoner of the responsibility of doing all that he or she can reasonably do to ensure that documents are received by the clerk of court in a timely manner. See Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964). Failure to stamp or properly address outgoing mail or to follow reasonable prison regulations governing prisoner mail does not constitute compliance with this standard.

Id. at 515 (first and third emphases added).

In the instant case, Dison did not place proper postage on the envelope that he delivered to the prison officials on or before August 24, 1992. The Louisiana Department of Corrections had a policy of allowing prisoners with insufficient funds in their drawing accounts to use "indigent," or free mail. This regulation is "reasonable." See Thompson, 993 F.2d at 515. ² Accordingly, Dison committed a "[f]ailure to stamp" that "[did] not constitute compliance" with "the responsibility of doing all he ... reasonably [could have done] to ensure that documents [were] received by the clerk of court in a timely manner." See Thompson, 993 F.2d at 515. ³

Further, Dison's use of an unknown agent does not trigger the Houston exception that is limited to filings with prison officials, over whom a prisoner has no control. In contrast to the lack of control over prison officials that the Supreme Court found crucial in Houston, 487 U.S. at 271, 108 S.Ct. at 2382, Dison arguably exercised some control over his agent and was not left to the devices of the defendants in his cause of action. See Wilder v. Chairman of Cent. Classification Bd., 926 F.2d 367, 370 (4th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 109, 116 L.Ed.2d...