Flood v. USA
AMENDED ORDER re 17 Order regarding date of filing of notice of appeal before the court on Remand from USCA. Signed by District Judge Max O. Cogburn, Jr on 7/1/2013. (Pro se litigant served by US Mail.) cc: USCA (tmg)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
DOCKET NO. 3:12-cv-00186-MOC
UNITED STATES OF AMERICA,
THIS MATTER is before the court on Remand from the Court of Appeals for the Fourth
Circuit for the limited purpose of allowing this court to obtain information from the parties
concerning when petitioner delivered her Notice of Appeal to prison authorities, all in
accordance with Fed. R. App. P. 4(c)(1) and Houston v. Lack, 487 U.S. 266 (1988). On June 4,
2013, the court entered an Order (#15) requiring responses within 14 days. Allowing three days
for mailing to petitioner and three days for a return mailing, petitioner’s response was due not
later than June 24, 2013.
In the previous Order entered June 25, 2013, the court determined that no timely response
had been filed within the time allowed based on a review of the docket. On June 28, 2013, three
days after entry of the previous Order, the Clerk of Court filed a letter from petitioner dated June
17, 2013, marked “received” in Charlotte on June 24, 2013, and then filed June 28, 2013. 1 The
court finds such letter to be a timely response and amends its Order accordingly.
Petitioner addressed the letter containing her response to the undersigned in Charlotte; however, the
undersigned’s chambers are in Asheville, resulting in the delay in filing due to forwarding. Petitioner is advised, in
any event, that anything she wants to file or to be considered by the court must be filed with the Clerk of Court and
not sent to chambers. This rule applies to attorneys as well as pro se litigants.
In conformity with the Order of the Court of Appeals for the Fourth Circuit, the court has
attempted to obtain information in evidentiary form concerning when petitioner delivered her
Notice of Appeal to prison authorities for mailing. Having considered all the documents of
record, the court makes the following findings:
Petitioner submitted to this court on or about January 10, 2013, a Notice of
Appeal purportedly signed and delivered to prison authorities on August 15, 2012.
Review of the envelope in which such notice was delivered reveals a postal
cancellation date of to be “January 2013”2 and a “Received” stamp applied by the
Clerk of this Court January 10, 2013. See Docket Entry (#12-1).
Also on that envelope is a United States Postal Service commemorative postage
stamp. The stamp applied was a stamp included in the 2012 four-panel holiday
stamp “Santa and Sleigh.” According to a postal bulletin issued by the United
States Postal Service, the First Day of Issue of such commemorative stamp was
October 11, 2012. The official postal bulletin provided that “[t]he stamps will go
on sale nationwide October 11, 2012. (see https://about.usps.com/postalbulletin/2012/pb22345/html/info_007.htm (as viewed June 25, 2013).
In response to the court’s inquiry, Order (#15), respondent has submitted an
affidavit from Phillip Fondale, Supervisory Correctional Systems Specialist,
Federal Prison Camp, Alderson, West Virginia (“Fondale Aff.”). In that affidavit,
Spc. Fondale avers in relevant part, as follows:
At FPC Alderson, staff do not put postage on an inmate’s
mail. Inmates may ask staff to weigh their mail if they need to
know how much postage is required.
The exact day is blurred, but appears to be January 8, 2013.
I spoke with mailroom staff, inmate Flood’s Case Manager,
and the Unit Secretary. No one recalls any issues with inmate
Fondale Aff. At ¶¶ 7-8;
Spc. Fondale also annexed to his affidavit a copy of the mail procedures
applicable at FPC Alderson. Those procedures provide that mail items left
with prison authorities in certain designated places will be collected and
delivered to the Alderson Post Office each weekday. Id. at Exh. 1.
After informing the parties of the postal stamp issue, petitioner contends in
her unverified3 response that she is not contending that she delivered that
Notice of Appeal (#12) within the period for appeal to prison authorities,
rather, she contends that what she ultimately filed with the court is merely
a copy of her original Notice of Appeal, and that she sent the copy to the
court in January 2013 with “‘2nd Mailing or Notice’ notated in the top
corner of document.” Response (#19) at 2. She further states she took
such action because she “had not received any response from the US
District Court regarding the first request for notice of appeal within a
specific amount of time that she deemed reasonable.” Id. at 1-2.
Findings and Conclusions
Based on such filings, the court makes the following findings:
petitioner contends but does not aver that she originally submitted her
Notice of Appeal to prison authorities on or about August 15, 2012;
Despite being instructed as to the requirement of filing affidavits or declarations, and having been provided
with instructions as to the manner in which to do so, see Order (#15), petitioner’s responsive letter is not in proper
evidentiary form and she does not attach any affidavit or declaration.
the only Notice of Appeal received by this court was mailed by petitioner
in January 2013, and petitioner does not now dispute that she mailed such
notice in January 2013;
petitioner contends that such Notice of Appeal is a copy of her August 15,
2013, Notice of Appeal. The Notice of Appeal filed in January 2013 has
the handwritten word “resend” at the top;
she states, but does not aver or declare, that she resubmitted such copy in
January 2103 because she had not heard from this court since submitting
her Notice of Appeal in August 2012. Petitioner does not allege that her
August 15, 2012, mailing was ever returned to her and does not edxplain
what lead her to believe that her Notice of Appeal was not received;
the January 2013 Notice of Appeal was unaccompanied by any letter
explaining that she was attempting to refile a document she believed she
had filed earlier;
the docket contains no public or intra-court notation that petitioner
contacted the court at any time post-judgment and before filing her
January 2013 Notice of Appeal questioning why she had not heard back
from the court based on her alleged filing of a Notice of Appeal in August
in proper evidentiary form, the government has submitted affidavits
indicating that prison authorities follow written procedures in handling
prisoner mail and that jail personnel, including her case manager, could
recall no concerns voiced by petitioner over the mishandling of her prison
The court, therefore, concludes that the January 2013 Notice of Appeal was not
delivered to jail authorities until on or about January 7, 2013, making such Notice of
Appeal untimely. To the extent that petitioner contends she delivered the original of such
Notice of Appeal to prison authorities in August 2012, there is no evidence of record that
would support such assertion other than the signature dates appearing on such notice.
First, petitioner has failed to present to the court any affidavit or declaration in support of
her contentions despite being advised of the necessity of such filing and the manner in
which to make such filing. Second, the admissible evidence of record, including the
affidavits submitted by the government, indicate no recollection by prison authorities of
any problems petitioner has had with her mail. Third, the court’s own record indicates
absolutely no correspondence from petitioner between the Clerk’s Entry of Judgment in
August 2012 and petitioner’s filing of her Notice of Appeal in January 2013. Rather than
allege or aver that she called or corresponded with someone in the Clerk’s office or
accessed the court’s docket remotely, petitioner contends that she unilaterally decided in
January 2013 to refile her Notice of Appeal because a “specific amount of time that she
deemed reasonable had passed.” Petitioner does not explain why she concluded that her
Notice of Appeal had not been filed or how she reached this conclusion. Petitioner does
not explain why she did not inquire of the Clerk of Court as to the status of her appeal
before she refiled her Notice of Appeal. Put another way, petitioner does not explain
how she knew her Notice of Appeal had not been filed.
Thus, the only record evidence before the court conclusively reveals that
petitioner’s January 2013 Notice of Appeals was not delivered to prison authorities until
on or about January 7, 2013, making such filing untimely. Petitioner’s contentions that
she previously submitted an identical or original Notice of Appeal to prison authorities
finds no support in the evidentiary record. The petitioner’s filing was not, therefore,
timely under Fed. R. App. P. 4(c)(1) and Houston v. Lack.
The Clerk of this Court shall certify a copy of this Amended Order to the Clerk of
the Court of Appeals for the Fourth Circuit, all in conformity with the Order of Limited
Remand in United States v. Flood, No. 13-6054 .
Signed: July 1, 2013
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