U.S. v. Gray, PLAINTIFF-APPELLEE

• Decision Date: 29 June 1999
• Docket Number: No. 98-6043,PLAINTIFF-APPELLEE,DEFENDANT-APPELLANT,98-6043
• Citation: 182 F.3d 762
• Parties: (10th Cir. 1999) UNITED STATES OF AMERICA,, v. STEVEN GRAY,
• Court: U.S. Court of Appeals — Tenth Circuit

Page 762

182 F.3d 762 (10th Cir. 1999)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. STEVEN GRAY, DEFENDANT-APPELLANT.

No. 98-6043

U.S. Court of Appeals, Tenth Circuit

June 29, 1999

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA (D.C. No. CIV-97-744-A)

Steven Gray, Pro Se Patrick M. Ryan, United States Attorney, Frank Michael Ringer, Assistant U.S. Attorney, Oklahoma City, Oklahoma, for Plaintiff-Appellee.

Before Porfilio, McKAY, and Lucero, Circuit Judges.

Lucero, Circuit Judge.

Two issues, the claimed misapplication of the prison mailbox rule to the filing of a motion pursuant to 28 U.S.C. § 2255 and the effectiveness of counsel at the guilt and sentencing phases of appellant's proceedings, are brought to us for resolution. We conclude that in holding appellant's motion untimely, the district court misapplied the mailbox rule because the facility in which appellant was incarcerated maintains an inadequate system for processing legal mail. Nonetheless, we affirm the district court's denial of appellant's motion because he failed to demonstrate that his counsel was ineffective.¹

Appellant Steven Gray pleaded guilty in February 1995 to conspiring "to possess with intent to distribute and to distribute 15 [later corrected to 14] ounces of cocaine base, `crack', a Schedule II controlled substance, in violation of Title 21, United States Code, Section 841(a)(1)." I R., Indictment at 1. Appellant was sentenced, inter alia, to 151 months' imprisonment based in part on the enhancement applicable to drug crimes involving crack cocaine. He did not take a direct appeal, and he is currently incarcerated in the Federal Correctional Institution in El Reno, Oklahoma. Proceeding pro se, appellant mailed the present motion seeking to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 in April of 1997.² The district court denied the motion as untimely on the basis that the motion should have been filed before April 24, 1997, see United States v. Simmonds, 111 F.3d 737, 746 (10th Cir. 1997), but was received by the court clerk on April 30. The district court rejected appellant's argument that the date of filing should be considered the day he allegedly mailed his motion, April 21, 1997, because he used the prison's regular mail system rather than its legal mail system. Alternatively, the district court concluded that appellant's claims fail on the merits. We previously granted appellant's request for a certificate of appealability.³

I.

Because appellant's conviction became final in 1995, he had one year from the April 24, 1996, effective date of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, in which to file his § 2255 motion. See Simmonds, 111 F.3d at 746. According to the certificate of service attached to the motion, appellant placed his motion "in the institution's internal mailbox, first-class postage prepaid, on April 21, 1997, for filing with the Clerk, United States District Court." I R., Doc. 39. However, the envelope containing the motion was postmarked April 29, and stamped as received by the court clerk on April 30, and the motion was not filed by the district court until May 6. In responding to the motion, the government argued that it was untimely because it was not filed (or received) by the district court prior to the end of the one-year limitations period. The government also contended that appellant was not entitled to the benefit of the prison mailbox rule, in which the date of filing is the date a prisoner delivers legal mail to prison authorities for forwarding to the court clerk, see Houston v. Lack, 487 U.S. 266, 274-76 (1988), because he used the institution's regular mail system rather than its legal mail system. Relying on United States v. Leonard, 937 F.2d 494, 495 (10th Cir. 1991), the district court agreed and held that the motion was not timely filed. On appeal, appellant contends he should receive the benefit of the prison mailbox rule because the legal mail system used at El Reno does not log in all legal mail.

In Leonard, we held that where a prison maintains a legal mail system separate from its regular mail system, a prisoner must use the legal mail system to be entitled to the benefit of the mailbox rule. See 937 F.2d at 495 ("A pro se prisoner who fails to take advantage of the special filing rule applicable to notices of appeal posted through the legal mail system foregoes the benefits of that system.").⁴ Our analysis relied on Houston's reasoning that "the prison's legal mail system procedures, by which mail is logged in at the time and date it is received, provide a `bright line rule' for determining the date of a pro se prisoner's `filing.'" Id. Implicit in both Houston's and Leonard's analyses is the understanding that legal mail systems automatically log in all legal mail through relatively simple, straightforward procedures. Cf. Koch v. Ricketts, 68 F.3d 1191, 1193 (9th Cir. 1995) ("Houston assumed that a logging procedure was not only available for regular first class mail, but was also automatic."). It is the existence of such procedures that led to the Court's adoption of the mailbox rule to reduce disputes over when a pro se prisoner's papers are deemed filed:

[T]he rejection of the mailbox rule in other contexts has been based in part on concerns that it would increase disputes and uncertainty over when a filing occurred and that it would put all the evidence about the date of filing in the hands of one party. These administrative concerns lead to the opposite Conclusion here. The pro se prisoner does not anonymously drop his notice of appeal in a public mailbox-he hands it over to prison authorities who have well-developed procedures for recording the date and time at which they receive papers for mailing and who can readily dispute a prisoner's assertions that he delivered the paper on a different date. Because reference to prison mail logs will generally be a straightforward inquiry, making filing turn on the date the pro se prisoner delivers the notice to prison authorities for mailing is a bright-line rule, not an uncertain one.

Houston, 487 U.S. at 275 (citation omitted).

The legal mail system in force at El Reno does not satisfy Houston's and Leonard's implicit understanding that prison authorities log in all legal mail at the time it is received. As explained by its inmate systems manager, "[l]egal mail may be sent from this institution using certified mail or regular mail. Only legal mail sent by certified mail would be recorded." I R., Doc. 48, Ex. A at 1. Thus, the only time legal mail is logged in is when the prisoner pays the extra mailing fee to send it by certified mail, a practice the Ninth Circuit has found to be questionable. See Koch, 68 F.3d at 1193 ("There was no logging procedure available to Koch that did not involve an additional fee [through certified, registered or insured mail]. Yet Koch still faced the obstacles that motivated the Court to adopt the Houston rule in the first place: lack of control over the progress of this mailing, and the potential for interference by prison officials whose interests are adverse to the prisoner bringing a § 1983 suit.").

The government does not argue that it can permissibly require an inmate to pay the additional costs applicable to certified mail before the inmate can benefit from the mailbox rule,⁵ but contends that El Reno utilizes another adequate procedure to record the mailing of non-certified mail. This procedure provides that the following notification will be placed on the envelope of any non-certified legal mail:

P.O. Box 1000

El Reno, Oklahoma 73036

Date ____________

The enclosed letter was processed through special mailing procedures for forwarding to you. The letter has been neither opened nor inspected. If the writer raised a question or problem over which [this] facility has jurisdiction, you may wish to return this material for further information and clarification. If the writer enclosed correspondence for forwarding to another addressee, please return the enclosure to the above address.

I R., Doc. 48, Ex. A at 1-2. According to El Reno's inmate systems manager, "[t]he date the envelope was mailed from the institution would be placed in the above notification." Id. at 2 (emphasis added).

While we do not entirely understand the purpose of this notification, we conclude that it does not necessarily indicate the date on which legal mail is presented to prison authorities, which is the pertinent information with respect to the mailbox rule, because the only date recorded is the date of mailing. Moreover, it does not render determination of the date of mailing a "straightforward inquiry" as Houston anticipated, but instead relies on the fortuity of the court preserving the envelope containing a prisoner's legal mail.⁶

We conclude that because El Reno's legal mail system does not provide a log or other record of the receipt by prison authorities of all legal mail sent from the facility, it does not meet the implicit requirements of Houston and Leonard. Appellant therefore should not be barred under Leonard from receiving the benefit of the mailbox rule. Because the only evidence of the date appellant gave his motion to prison authorities for mailing is his certificate of service, which contains a declaration in compliance with 28 U.S.C. § 1746, that he did so on April 21, appellant's motion was timely.⁷

II.

We turn to the merits. Appellant contends his counsel was constitutionally ineffective during his plea colloquy and at sentencing for essentially the same reason-for failing to put the government to its burden of proving that the conspiracy for which appellant was convicted involved the form of cocaine known as "crack," on which appellant's sentence was based, instead of cocaine powder. Because the sentence for crack is significantly stiffer than for cocaine powder, ...