DENNIS v. NORRIS

HENRY JONES, Magistrate Judge

Now before the court is a petition for a writ of habeas corpus under 28 U.S.C. § 2254 by Michael Winston Dennis, an inmate of the Arkansas Department of Correction. Petitioner was convicted by a jury on June 11, 1997, of first degree murder, and he was sentenced to twenty years imprisonment (Respondent's Exhibit 1). The Arkansas Court of Appeals affirmed his conviction (Respondent's Exhibit 3). He filed a motion for post-conviction relief (Respondent's Exhibit 4), but the circuit court found it was untimely and denied relief (Respondent's Exhibit 5). The Arkansas Supreme Court affirmed the trial court's decision on June 7, 2001 (Respondent's Exhibit 7).

In the present petition, Petitioner's sole ground for relief is that trial counsel was ineffective. Respondent asks the court to dismiss the petition, contending the ineffective assistance of counsel claims are procedurally barred. The court held an evidentiary hearing on the question of procedural default on December 16, 2003.

If a petitioner has not presented his claims to the state courts in a procedurally correct manner, a habeas court may not consider them, unless he establishes cause for the default and resulting prejudice, or he establishes that the failure to consider the claims would result in a miscarriage of justice because he is actually innocent. Murray v. Carrier, 477 U.S. 478, 488 (1986). In order to establish "cause," a petitioner must show "some objective factor external to the defense impeded [his] efforts to comply with a State's procedural rule," such as "a showing that the factual or legal basis for the claim was not reasonably available," or that "interference by officials made compliance impracticable." Id.

The Arkansas Court of Appeals issued the mandate in Petitioner's direct appeal on October 13, 1998. Under Rule 37 of the Arkansas Rules of Criminal Procedure, his post-conviction motion was due sixty days from that date, or no later than December 12, 1998. The record reveals Petitioner dated his pro se petition November 26, 1998, and had it notarized at the prison on November 30, 1998 (Respondent's Exhibit 4). He testified he placed the copies of the petition addressed to the circuit court clerk, the circuit judge and the prosecuting attorney in the prison mail system on December 3, 1998. He contends the prosecutor and the circuit judge received their copies of the petition on December 4, 1998. On that date, the judge's law clerk wrote him, informing him his petition had not been filed in the clerk's office, and that he had not submitted a motion to proceed in forma pauperis (Petitioner's Exhibit B). Petitioner contends he wrote back to the law clerk on December 6, 1998, advising that he had sent the petition to the circuit clerk, along with a motion to proceedin forma pauperis (Petitioner's Exhibit C). On December 11, 1998, the law clerk wrote to Petitioner again, informing him that his petition had still not been filed with the circuit clerk, and advising him that filing a document with the circuit judge was not the equivalent of filing it with the clerk for purposes of determining whether it was timely filed (Petitioner's Exhibit D). On December 18, 1998, the circuit clerk's office filed a Rule 37 petition by Petitioner (Petitioner's Exhibit E), and a pleading entitled "Petition Requesting Judicial Notice and Leave of Court to File a Belated Petition Pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure," along with a motion to proceed in forma pauperis (Unlabeled document attached to Petitioner's Exhibit E). Another copy of the petition was apparently filed on December 23, 1998. The mail-room log from the prison indicates that Petitioner mailed three pieces of legal mail on December 3, 1998, and one piece of legal mail on December 9, 1998 (Petitioner's Exhibit I). Neither party presented mail room logs for dates past December 13, 1998.

It is Petitioner's contention that the circuit clerk's office received his petition on December 4, 1998, but simply failed to file it because of various inadequacies in its internal procedures. He further contends A.R.C.P. 5(d) in effect at the time in question permitted filing any paper with the circuit judge, in that it provided that a "judge may permit papers or pleadings to be filed with him, in which event he shall note thereon the filing date and forthwith transmit them to the office of the clerk."

The court first notes that the question in this proceeding is not whether the state court correctly decided the petition was untimely under state law. The question is whether, underMurray, interference from state officials made compliance with the filing deadline impractical. As the Eighth Circuit has recognized, "the Supreme Court has not `establish[ed] conclusively the contours' of the `cause' requirement. . . .Jamison v. Lockhart, 975 F.2d 1377, 1379 (8th Cir. 1992), quoting, Amadeo v. Zant, 486 U.S. 214, 221 (1988). "At a minimum, however, [a petitioner] must show that `somethingexternal to [him],' something that cannot fairly be attributed to him, caused the procedural default." Ivy v. Caspari, 173 F.3d 1136, 1140-41 (8th Cir. 1994) (citations omitted).

Respondent argues the Eleventh Circuit Court of Appeals has held that when a litigant uses ordinary mail, he does so at his own peril. Sandvik v. United States, 177 F.3d 1269 (11th Cir. 1999). That court was deciding whether inadequacies of the United States Postal Service created such extraordinary circumstances that the petitioner was entitled to invoke the doctrine of equitable tolling to toll the running of the one-year time limitation for filing motions under 28 U.S.C. § 2255. That is simply not the law in this circuit, however. The Eighth Circuit applies the prison mailbox rule to the filing of petitions under § 2255 and § 2254. Under that rule, a petition "is deemed timely filed when an inmate deposits [it] in the prison mail system prior to the expiration of the filing deadline." Moore v. U.S., 173 F.3d 1131, 1135 (8th Cir. 1999).

Although it is impossible to determine the exact reason for the delay in the filing of Petitioner's Rule 37 petition, I am convinced it was not something within his control. Certainly, he could have mailed his petition sooner. It was not unreasonable or negligent, however, to place it in the prison mail system nine days before the deadline, as evidenced by the fact that the circuit judge received a copy of the petition the day after it was mailed.

I do not find that the State is required to apply the mailbox rule to the filing of pleadings in its courts. Petitioner here, however, did all he was able to do. The procedural default doctrine does not demand more. "It is the fact of nondelivery of a prisoner's timely and properly mailed motion, not the reason for that nondelivery, that constitutes cause for the procedural default." Ivy v. Caspari, 173 F.3d at 1141. Thus, I find Petitioner has established sufficient cause for his default.

As grounds for relief, Petitioner asserts numerous claims of ineffective assistance of counsel. I find a hearing is necessary to determine whether these claims resulted in prejudice to Petitioner under Murray. An evidentiary hearing will be scheduled by separate order.

SO ORDERED.