McDowell v. Richardson et al

Filing 28

ORDER denying 27 Motion (Request) to File a Notice of Appeal. (See document for details). Signed by Judge David G Campbell on 5/1/12.(LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Theodore Cush McDowell,
Petitioner,

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No. CV11-0716-PHX-DGC
ORDER

v.
Shelton Richardson,
Respondent.

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On April 2, 2012, Pro Se Petitioner Theodore Cush McDowell filed a “notice to

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this Court to consider accepting Petitioner’s notice of appeal from this Court’s new final

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order entered on February 7, 2012.” Doc. 27. Petitioner stated that he received an order

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from the Ninth Circuit Court of Appeals on March 27, 2012, informing him that it may

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not have jurisdiction over his appeal because he had not yet filed a notice of appeal with

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this Court. Doc. 27 at 1. Petitioner has attached a notice of appeal with a statement

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declaring that he mailed the notice to this Court from the Adams County Correctional

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Center on February 13, 2012.

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Federal Rule of Appellate Procedure 4(a)(1)(A) states that, in a civil case, a notice

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of appeal “must be filed with the district clerk within 30 days after the judgment of the

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order appealed from.” Fed. R. App. P. 4(a)(1)(A). This rule applies to appeals in a

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habeas proceeding and is both “mandatory and jurisdictional.” Browder v. Director,

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Dept. of Corrections of Illinois, 434 U.S. 257, 264 (1968) (quoting United States v.

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Robinson, 361 U.S. 220, 229 (1960)). The Court may extend the time for filing an appeal

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under Rule 4(a)(5) upon a motion filed within 30 days after the time for filing the notice

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has expired and upon a showing of “excusable neglect or good cause.” Fed. R. App. P.

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4(a)(5). Petitioner did not file such a motion and does not ask the Court to extend the

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time for filing the notice of appeal under Rule 4(a)(5).

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Rather, Petitioner asserts that his notice was timely because he mailed it on

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February 13, 2012. Petitioner appears to invoke Rule 4(c)(1), commonly referred to as

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the “prisoner mailbox rule,” which states:

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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. If an
institution has a system designed for legal mail, the inmate must use that
system to receive the benefit of this rule. 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.
Fed. R. App. P. 4(c)(1).

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Petitioner provides a statement at the bottom of his attached notice of appeal

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declaring that he “properly placed my NOTICE OF APPEAL in an envelope and mailed

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it at Adams County Correctional Center, P.O. Box 1600, Washington, MS 39190, on

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February 13, 2012.” Doc. 27 at 6. Petitioner does not state whether the Adams County

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Correctional Center has a system designated for legal mail and whether or not he used

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that system.

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Petitioner’s statement does not meet the requirements of Rule 4(c)(1).

Even if Petitioner can show that he used the correct mailing system,

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Petitioner’s statement does not comply with 28 U.S.C. § 1746, as required by

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Rule 4(c)(1), because it does not attest to be true “under penalty of perjury.” The

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statement also fails to state that first-class postage was prepaid as required by

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Rule 4(c)(1). As the Seventh Circuit stated in United States v. Craig, 368 F. 3d 738, 741

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(7th Cir. 2004), “Rule 4(c)(1) requires the declaration to state only two things; 50% is not

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enough. The postage requirement is important: mail bearing a stamp gets going, but an

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unstamped document may linger. Perhaps that is exactly what happened [in this case].”

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Unlike other cases in this Circuit that have applied the “prisoner mailbox rule” to

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notices that arrived late but within a reasonable time after the claimed mailing (see, e.g.,
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Koch v. Ricketts, 68 F.3d 1191, 1192 (9th Cir. 1995); Douglas v. Noelle, 567 F.3d 1103,

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1106 (9th Cir. 2009)), this Court also has no evidence in the form of a late-arriving notice

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of appeal that Petitioner ever mailed the notice as he claims. Petitioner argues that his

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mail previously failed to arrive when he filed objections with this Court to Judge Aspey’s

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Report and Recommendation (“R&R”). Doc. 27 at 1-2. Petitioner then submitted a

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statement of charges to his inmate account, presumably listing mailing charges associated

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with his claimed filing (see Doc. 17), and the Court accepted for purposes of reviewing

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Petitioner’s objections to the R&R that he had provided evidence of timely filing. See

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Doc. 25 at 1. In this motion, however, Petitioner has submitted no documentation other

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than his own statement, and has failed to comply with the specific requirements of

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Rule 4(c)(1). Moreover, this motion does not involve objections to an R&R, but the

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timeliness of a notice of appeal which is mandatory for appellate court jurisdiction. See,

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e.g., Browder, 434 U.S. at 264.

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Finally, the Court notes that the Ninth Circuit’s order required Petitioner to show

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cause, within 21 days of the order, why the appeal should not be dismissed. Doc. 27 at 4.

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Petitioner does not claim that he complied with this requirement.

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Because Petitioner has not complied with the requirements or Rule 4(c)(1) and the
Ninth Circuit’s order, his motion will be denied.
IT IS ORDERED that Petitioner’s request to file a notice of appeal (Doc. 27) is
denied.
Dated this 1st day of May, 2012.

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