Ingram v. Jones

• Court: U.S. Court of Appeals — Seventh Circuit
• Writing for the Court: Bauer
• Citation: Ingram v. Jones, 507 F.3d 640 (7th Cir. 2007)
• Decision Date: 14 November 2007
• Docket Number: No. 06-2879.,No. 06-2766.,06-2766.,06-2879.
• Parties: Edmund INGRAM, Petitioner-Appellant, v. Eddie JONES, Warden, Respondent-Appellee. Malcolm Rush, Petitioner-Appellant, v. Matthew J. Frank, Respondent-Appellee.

507 F.3d 640

Edmund INGRAM, Petitioner-Appellant, v. Eddie JONES, Warden, Respondent-Appellee.

Malcolm Rush, Petitioner-Appellant, v. Matthew J. Frank, Respondent-Appellee.

No. 06-2766.

No. 06-2879.

United States Court of Appeals, Seventh Circuit.

Argued September 19, 2007.

Decided November 14, 2007.

As Amended December 7, 2007.

Eugene Volokh (argued), University of California, School of Law, Los Angeles, CA, for Petitioners-Appellants.

Leah C. Myers (argued), Office of the Attorney General, Chicago, IL, for Respondent-Appellee.

Marguerite M. Moeller (argued), Office of the Attorney General Wisconsin Department of Justice, Madison, WI, for Matthew J. Frank.

Before BAUER, MANION, and WOOD, Circuit Judges.

BAUER, Circuit Judge.

Prisoners Edward Ingram and Malcolm Rush appeal their respective district courts' decisions denying their petitions for writs of habeas corpus.¹ Both Ingram and Rush filed their notices of appeal more than 30 days after their judgments. In this consolidated appeal, we asked the parties to address appellate jurisdiction in light of Fed. R.App. P. 4(c)(1)'s language that an inmate's notice of appeal "is timely if it is deposited in the institution's internal mail system on or before the last day for filing," although both Ingram and Rush admittedly failed to affix first-class postage at the time their notices were deposited for mailing.

Because we find that Ingram's notice of appeal was timely, we have jurisdiction to hear his appeal.² Because we find that Rush's petition was untimely, we affirm the denial of his petition.

I. Background

Edmund Ingram was a prisoner at Stateville Correctional Center ("Stateville"), in Joliet, Illinois.³ On October 14, 2005, the district court for the Northern District of Illinois entered judgment dismissing Ingram's habeas petition. Ingram's notice of appeal from that order was filed in the district court on November 18, 2005. Because Ingram's notice was not filed within 30 days of the judgment, we ordered him to file either (1) a memo addressing our jurisdiction; or (2) a declaration or notarized statement, setting forth the date the notice was deposited in the prison's mailing system, and stating whether first-class postage was prepaid, pursuant to Fed. R.App. P. 4(c)(1). On July 14, 2006, Ingram filed a "Jurisdictional Memorandum/Declaration," stating that he deposited his notice of appeal in the prison mail system on November 11, 2005, but failing to disclose whether or not postage was prepaid when he placed it in the prison mailbox.

On July 18, 2006, we ordered Ingram to file a supplemental declaration setting forth the date of deposit and stating whether postage was prepaid. On August 2, 2006, Ingram filed a "Supplemental Notarized Statement," setting forth the date of deposit and that postage was "not prepaid," but it was "processed and paid by the Institution, Stateville C.C."

Malcolm Rush is a prisoner at Waupun Correctional Institution ("Waupun"), in Waupun, Wisconsin. On May 17, 2006, the district court for the Eastern District of Wisconsin entered judgment dismissing Rush's habeas petition. Rush's notice of appeal was filed in the district court on June 23, 2006. Because Rush's notice was not filed within 30 days of the judgment dismissing his petition, we also ordered him to file either (1) a memo addressing our jurisdiction; or (2) a declaration or notarized statement, setting forth the date the notice was deposited in the prison's mailing system, and stating whether first-class postage was prepaid, pursuant to Fed. R.App. P. 4(c)(1). On August 2, 2006, Rush filed a declaration stating that he had deposited his notice of appeal in the prison mail system on June 9, 2006, along with a request for "a legal loan exemption for postage payments, pursuant to DOC 309.51."⁴ Rush also stated that first-class postage was not paid until on or after June 19, 2006.

On September 22, 2006, on our own motion, we (1) consolidated both appeals to determine appellate jurisdiction; (2) appointed counsel to both appellants; and (3) ordered briefing limited to the issue of appellate jurisdiction, in light of Fed. R.App. P. 4(c)(1)'s language that an inmate's notice of appeal "is timely if it is deposited in the institution's internal mail system on or before the last day for filing."

Prior to filing any briefs with this Court, on January 24, 2007, Ingram executed a final "Supplemental Declaration," stating that he deposited his notice of appeal in the prison mailing system on November 11, 2005, first-class postage was prepaid by the prison, and the prison had precommitted to paying for prisoners' legal mail without any need for the prisoner to attach a stamp. Similarly, on January 26, 2007, Rush executed a final "Supplemental Declaration," stating that he deposited his notice of appeal in the prison mailing system on June 9, 2006, first-class postage was prepaid by the prison, and the prison had precommitted to paying for legal mail "under those circumstances specified by Wis. Admin. Code § 309.51, without any need for the prisoner to attach a stamp."

II. Discussion

In addressing the issue of appellate jurisdiction, both Ingram and Rush argue that (1) the first sentence of Fed. R.App. P. 4(c)(1) is the only mandatory sentence in the Rule, and because their notices of appeal were deposited in the prison mailing systems on or before the last day of filing, they are timely; and that (2) the third sentence of Rule 4(c)(1) is permissive, in that an inmate may file, but is not required to file, either a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid; or that (3) even if the third sentence of Rule 4(c)(1) is mandatory, both prisoners fulfilled the requirement by filing supplemental declarations that satisfied the two requirements of the third sentence of the Rule.

The first sentence of Fed. R.App. P. 4(c)(1) states: "If an inmate confined in an institution files a notice of appeal in either a civil or a criminal case, the notice is timely if it is deposited in the institution's internal mail system on or before the last day for filing." Rule 4(c)(1), also known as the "prisoner mailbox rule," provides that a notice of appeal filed by a prisoner is deemed filed on the date the prisoner deposits the notice in the prison mail system, and not on the date when it is received by the clerk of the court. Houston v. Lack, 487 U.S. 266, 275-76, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988).

The second sentence of the Rule states: "If an institution has a system designed for legal mail, the inmate must use that system to receive the benefit of this rule." Rule 4(c)(1) requires a prisoner to use a legal mailing system if the prison has one. United States v. Craig, 368 F.3d 738, 740 (7th Cir.2004). In the context of this appeal, Stateville has a separate legal mailing system; Waupun does not.

The third sentence of the Rule states: "Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746, or by a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid." Rule 4(c)(1) "requires the declaration to state two things: 50% is not enough. The postage requirement is important: mail bearing a stamp gets going, but an unstamped document may linger." Craig, 368 F.3d at 740.

A. Edmund Ingram

Respondent-Appellee Jones concedes that Ingram's notice of appeal was timely, because Ingram appeared to use Stateville's legal mailing system.⁵ We agree. Rule 4(c)(1) requires a prisoner to use a legal mailing system if the prison has one. Craig, 368 F.3d at 740. Stateville has a separate legal mailing system, in which legal mail is logged on a prisoner's legal mail card. Ingram's legal mail log did not reflect any mailing in November 2005.⁶ However, his account was not charged for postage during that time, nor was he obligated to pay for postage for his legal mail.⁷ The notice of appeal was delivered to the district court on November 18, 2005. Thus the logical inference would be that Ingram used the legal mailing system, as he did not personally pay for his postage. We find that Ingram's notice of appeal was deposited on November 11, 2005 in Stateville's legal mailing system. Therefore, he satisfies the second sentence of Rule 4(c)(1) and receives the benefit of the Rule, without our consideration of the third sentence.

B. Malcolm Rush

First, Rush argues that his notice was deposited within thirty days of the district court's judgment, and therefore it was timely and that Rush should not be required to do anything further. While it is true that Rush deposited his notice in the mailing system on time, he is not exempt from compliance with the other requirements of the Rule. As we held in Craig, a prisoner may receive the benefit of the prison mailbox rule if he complies with its requirements, which includes filing a declaration or notarized statement. 368 F.3d at 740.

Rush argues that the third sentence of the Rule gives the prisoner the option of filing a declaration or notarized statement, in order to establish a timely filing. This position is inconsistent with our decision in Craig, where we held that if a prison does not have a legal mailing system, the prisoner is required to show, through a declaration or notarized...