Paige v. U.S., No. 98-1271WM

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: Before RICHARD S. ARNOLD and FAGG; FAGG
• Citation: 171 F.3d 559
• Parties: Kevin B. PAIGE, Appellant, v. UNITED STATES of America, Appellee.
• Docket Number: No. 98-1271WM
• Decision Date: 03 March 1999

Page 559

171 F.3d 559 Kevin B. PAIGE, Appellant,
v.
UNITED STATES of America, Appellee. No. 98-1271WM. United States Court of Appeals,
Eighth Circuit. Submitted Nov. 17, 1998.
Decided March 3, 1999.

Page 560

Ronald L. Jurgenson, Lee's Summit, Missouri, argued, for Appellant.

Lajuana M. Counts, Kansas City, Missouri, argued (Stephen L. Hill, Jr., United States Attorney, on the brief), for Appellee.

Before RICHARD S. ARNOLD and FAGG, Circuit Judges, and DAWSON, ^* District Judge.

FAGG, Circuit Judge.

A jury convicted Kevin B. Paige on three counts of using a firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(c). Paige appealed, and we affirmed his conviction and sentence. See United States v. Lee, 886 F.2d 998 (8th Cir.1989). The Supreme Court denied Paige's petition for certiorari. See Paige v. United States, 493 U.S. 1033, 110 S.Ct. 751, 107 L.Ed.2d 768 (1990). Paige then filed this 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. The district court dismissed Paige's motion as untimely because Paige did not file it by April 23, 1997. Congress enacted a one-year statute of limitations for § 2255 motions on April 24, 1996, see 28 U.S.C. § 2255 (Supp. II 1996), and federal prisoners whose convictions became final before then had until April 23 or 24 of the following year to file their motions, depending on whether the enactment date is counted towards the one-year limitations period, compare Brown v. Angelone, 150 F.3d 370, 375 (4th Cir.1998) (April 23); Miller v. Marr, 141 F.3d 976, 977 (10th Cir.) (same), cert. denied, --- U.S. ----, 119 S.Ct. 210, 142 L.Ed.2d 173 (1998); Burns v. Morton, 134 F.3d 109, 112 (3d Cir.1998) (same), with Flanagan v. Johnson, 154 F.3d 196, 201 (5th Cir.1998) (April 24); Mickens v. United States, 148 F.3d 145, 148 (2d Cir.1998) (same). Paige appeals the dismissal of his motion as untimely. We affirm.

Paige first asserts the district court should have deemed his petition timely filed under Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988). In Houston, the Supreme Court held that under Federal Rule of Appellate Procedure 4(a)(1), a notice of appeal by a pro se prisoner is deemed filed when delivered to prison authorities for forwarding to the appropriate district court clerk. See id. at 268, 276, 108 S.Ct. 2379. We have not yet decided whether the prison mailbox rule applies to the filing of a § 2255 motion as well as the filing of a notice of appeal. Although a panel of this court decided the rule applies to the filing of § 2254 petitions, the...