Goldsby v. Russell

Filing 19

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Respondent shall have 14 days from the date of this Memorandum and Order to file a new response to the Courts Order to Show Cause why Petitioner should not be granted federal habeas relief. Show Cause Response due by 8/5/2014. Signed by District Judge Audrey G. Fleissig on 7/22/14. (JWJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DEMETRICE GOLDSBY,
Petitioner,
v.
STATE OF MISSOURI,
Respondent.

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Case No. 4:11CV01268 AGF

MEMORANDUM AND ORDER
This matter is before the Court on the pro se petition of Missouri state prisoner
Demetrice Goldsby for a writ of habeas corpus pursuant to 28 U.S.C. ' 2254. Respondent
argues that this Court lacks jurisdiction to consider the petition because it was filed after
Petitioner was released from custody, and Petitioner is not entitled to the benefit of the
prison mailbox rule. This Court rejects Respondent’s argument and orders Respondent to
file a new response to the Court’s Order to Show Cause why Petitioner should not be
granted federal habeas relief.
BACKGROUND
On June 23, 2008, Petitioner was sentenced to five years’ incarceration upon a
guilty plea to one count of first-degree child molestation. Petitioner was released from
custody on July 15, 2011. On July 18, 2011, the Court received Petitioner’s pro se
unsigned habeas petition along with an unsigned motion for leave to proceed in forma
pauperis. The petition did not include a declaration of when it was placed in the prison

mail system. The envelope containing the unsigned petition is stamped with a statement
that begins, “This correspondence is from an inmate in the custody of the Missouri
Department of Corrections . . . .”
On July 27, 2011, the Court returned both documents to Petitioner, granting him 20
days to sign them and return them to the Court. On August 1, 2011, Petitioner did so.
The signed petition included a declaration under penalty of perjury that the original
unsigned petition had been placed in the prison mail system on July 14, 2011.
DISCUSSION
In order for this Court to have jurisdiction to consider a habeas petition from a state
prisoner, the petitioner must be “in custody” under the judgment challenged at the time the
petition is filed. Carafas v. LaVallee, 391 U.S. 234, 238 (1968) (quoting 28 U.S.C.
§ 2254(a)). As long as a habeas petitioner was “in custody,” under the conviction and
sentence challenged in his petition, when his case was filed, a federal court is not divested
of jurisdiction by the petitioner’s later release from custody. Maleng v. Cook, 490 U.S.
488, 491-92 (1989).
Pursuant to the federal prison mailbox rule, a prisoner’s pro se federal habeas
petition is deemed filed on the date it is delivered to prison authorities for mailing to the
court. Nichols v. Bowersox, 172 F.3d 1068, 1077 (8th Cir. 1999) (en banc) (abrogated on
other grounds). To benefit from the rule, a prisoner must file a sworn declaration
recounting the date upon which he left his petition with prison authorities, Porchia v.
Norris, 251 F.3d 1196, 1198 (8th Cir. 2001), but this declaration need not accompany the
petition and can be submitted later, Grady v. United States, 269 F.3d 913, 916-17 (8th Cir.
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2001). The petitioner bears the burden of proving his entitlement to the benefit of prison
mailbox rule. Porchia, 251 F.3d at 1198.
Respondent argues that Petitioner is not entitled to the benefit of the prison
mailbox rule because the unsigned petition did not include a declaration as to its timeliness,
and because it is not entirely clear whether Petitioner placed the envelope, that was not
marked as legal mail, containing the unsigned petition and motion, in the prison mail
system or whether he mailed it after he was released. Respondent submits the affidavit of
a prison mailroom employee attesting that the postage meter sticker appearing on the
envelope that contained the unsigned petition and motion may or may not have been placed
there by the prison.
Respondent’s arguments are without merit. Petitioner has declared under penalty
of perjury that he placed the unsigned petition in the prison mail system on July 14, 2011,
while he was still in custody, and this is supported by the physical record. Respondent has
not presented any conclusive evidence to rebut this. The unsigned petition was returned
for a technicality of being unsigned and this was then timely corrected after being called to
Petitioner’s attention, in accordance with Federal Rule of Civil Procedure 11(a). In sum,
pursuant to the prison mailbox rule, Petitioner’s habeas petition is deemed filed on July 14,
2011, when he was still in custody. See Thomas v. Thaler, No. 7:07-CV-177-O, 2011 WL
597024, at *2 (N.D. Tex. 2011); cf. Guirsch v. Battaglia, No. 05 C 2696, 2007 WL
4557819, at *1 (N.D. Ill. Dec. 20, 2007) (“The Rules Governing § 2254 Cases, however,
require a clerk to accept a filing even though it lacks a signature. [Petitioner’s] unsigned
petition therefore stopped the running of the statute of limitations and his later-filed, signed
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petition related back to date of the timely, unsigned petition.”).
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Respondent shall have 14 days from the date of
this Memorandum and Order to file a new response to the Court’s Order to Show Cause
why Petitioner should not be granted federal habeas relief.

Audrey G. Fleissig
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 22nd day of July, 2014.

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