Knickerbocker v. Artuz, PETITIONER-APPELLANT

• Decision Date: 01 August 2000
• Docket Number: Docket No. 01-2140,RESPONDENTS-APPELLEES,PETITIONER-APPELLANT
• Citation: 271 F.3d 35
• Parties: (2nd Cir. 2001) GEORGE KNICKERBOCKER,, v. CHRISTOPHER ARTUZ, SUPERINTENDENT, GREEN HAVEN CORRECTIONAL FACILITY, AND THE ATTORNEY GENERAL OF THE STATE OF NEW YORK,
• Court: U.S. Court of Appeals — Second Circuit

Page 35

271 F.3d 35 (2nd Cir. 2001)

GEORGE KNICKERBOCKER, PETITIONER-APPELLANT, v. CHRISTOPHER ARTUZ, SUPERINTENDENT, GREEN HAVEN CORRECTIONAL FACILITY, AND THE ATTORNEY GENERAL OF THE STATE OF NEW YORK, RESPONDENTS-APPELLEES.

Docket No. 01-2140

August Term, 2000

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Submitted: June 20, 2001

Decided: November 5, 2001

State prisoner appeals from a judgment of the United States District Court for the Southern District of New York (McMahon, J.), dismissing his petition for a writ of habeas corpus. We sua sponte dismiss the appeal and deny as moot petitioner's motions for in forma pauperis status and a certificate of appealability, because petitioner's notice of appeal was not timely filed. We hold that the prison mailbox rule, set forth in Houston v. Lack, 487 U.S. 266, 276 (1988), does not apply where a pro se prisoner delivers his notice of appeal to someone outside the prison system for forwarding to the court clerk. The action is remanded to the district court to determine whether, pursuant to Fed. R. App. P. 4(a)(5)(A), Knickerbocker should be granted an extension of time for filing his notice of appeal.

Appeal dismissed sua sponte, motions denied as moot, and action remanded to district court.

George Knickerbocker, Stormville, N.Y., pro se.

John J. Sergi, Westchester County District Attorney's Office, White Plains, N.Y., for Respondent-Appellee Christopher Artuz.

Before: Jacobs, Parker, and Sotomayor, Circuit Judges.

Per Curiam.

Petitioner-appellant George Knickerbocker, an incarcerated state prisoner, moves pro se for in forma pauperis status and a certificate of appealability following the dismissal of his petition for a writ of habeas corpus by the United States District Court for the Southern District of New York (McMahon, J.). The district court entered judgment on January 17, 2001. Pursuant to Fed. R. App. P. 4(a)(1)(A), Knickerbocker was required to file his notice of appeal within thirty days of the entry of judgment, which in this case fell on February 16, 2001. Instead, the district court received Knickerbocker's notice of appeal on February 21, 2001.¹ Knickerbocker had signed and dated the notice of appeal February 12, 2001, twenty-six days after the entry of judgment, and had verified that he was incarcerated in Stormville, New York. Attached to Knickerbocker's notice of appeal was an affirmation of service by his sister, Theresa Knickerbocker, stating that she mailed the notice of appeal to this Court on February 14, 2001.

In Houston v. Lack, the Supreme Court held that a pro se prisoner's notice of appeal is deemed filed on the date that the prisoner "deliver[s] it to the prison authorities for forwarding to the court clerk," rather than when it is received by the court clerk. 487 U.S. 266, 276 (1988); see also Fed. R. App. P. 4(c) (allowing a notice of appeal filed by an incarcerated individual to be deemed filed as of the day it is given to prison officials for mailing). The Court explained that pro se prisoners cannot take the precautions that are available to other litigants to ensure that their documents are timely filed. "Worse," the Court continued, "the pro se prisoner has no choice but to entrust the forwarding of his notice of appeal to prison authorities whom he cannot control or supervise and who may have every incentive to delay." Houston, 487 U.S. at 271.

Although Knickerbocker timely dated the notice of appeal, he did not deliver the document to prison officials to forward to the court clerk. Instead, he delivered the notice of appeal to his sister to mail to the court. Knickerbocker is not entitled to the benefit of the prison mailbox rule because, unlike the situation addressed in Houston, the delay in this case is not attributable to prison officials. Knickerbocker chose not to "entrust the forwarding of his notice of appeal to prison authorities," but rather gave it to his sister who, unlike prison officials, had no...