Brown v. Clarke

Filing 36

ORDER. The Court ADOPTS 34 Report and Recommendations. It is therefore ORDERED that the record be supplemented with the factual findings set forth above and returned to the Fourth Circuit Court of Appeals for further consideration in connection wi th Brown's pending proceedings in that court. The Clerk is DIRECTED to mail a copy of this Order to petitioner and to counsel of record for respondent. Signed by Chief District Judge Rebecca Beach Smith on 1/3/2014. Copies mailed 1/3/2014. (jmey, )

UNITED

STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Norfolk Division

DOUGLAS MICHAEL BROWN,

JR.,

#1006008,
Petitioner,
USDC Civil Action No.

USCA Case No.

2:12cvll7

13-6410

HAROLD CLARKE,

Director Virginia Department
Of Corrections,
Respondent.

ORDER

This

case

was

initiated

corpus under 28 U.S.C.
Final

Order on

by

petition

for

a

writ

of

habeas

§ 2254, which was denied and dismissed by

December

20,

2012.

On

March

received and filed Brown's Notice of Appeal.

4,

2013,

the

court

Brown maintains that

he delivered the Notice of Appeal and a Motion for Certificate of

Appealability to the prison mailroom within the thirty-day period
for filing an appeal.

By unpublished Opinion dated July 24, 2013,

the Fourth Circuit remanded the case "for the limited purpose of
allowing the District Court to make factual findings as to the date
Brown properly delivered his Notice of Appeal to prison officials
for filing."
July 24,

Brown v. Clarke, No. 13-6410, slip op. at 2 (4th Cir.

2013) .

The matter was referred to a United States Magistrate Judge
who

directed

the

parties

to

submit

additional

evidence

to

demonstrate the date Brown delivered the Notice of Appeal to prison

mailing

officials.

memoranda

from

Recommendation

The

the
on

Magistrate

parties

and

December

3,

Judge

received

thereafter
2013,

filed

exhibits

a

recommending

Report
the

and

and

court

supplement the record with the factual findings set out below.

The

parties were advised of their right to file written objections to
the findings and recommendations made by the Magistrate Judge.

The

court received no objections to the Report and Recommendation and
the time for filing objections has now expired.
Accordingly, the court ADOPTS the findings and recommendations
set forth in the Magistrate Judge's Report and Recommendation filed
December 3, 2013 and makes the following Findings of Fact:
Brown is incarcerated at the Augusta Correctional Center in

Craigsville, Virginia {"Augusta") .

Augusta maintains a system for

monitoring and cataloging outgoing legal mail.

outgoing

legal

mail

is

stamped

and

logged

Augusta

deposit

outgoing

Under the system,

by

prison

mailing

officials.

Inmates

at

receptacles in each housing unit.

locked receptacles,

placed in

mail

in

locked

mail

The mail is retrieved from the

a mail

bag and delivered to

the

central mailing office where all legal mail is stamped and logged.
Mail which is not identified as legal mail is neither stamped, nor

logged,

but mailed as general correspondence,

which the Augusta

facility does not track.

On January 10, 2013,

Brown placed a Notice of Appeal in the

prison

mailing

Notice").

system

addressed

to

this

court

(the

"January

He simultaneously placed a Notice of Appeal addressed to

the Respondent in the outgoing mail. The Respondent received his
mailed copy of the January Notice on January 16, 2013.
never received the January Notice.

This court

Neither the Respondent's copy

nor the court's were identified as legal mail and,

as a result,

neither were stamped or logged by Augusta mailing officials.
Brown's testimony that he mailed the January Notice to this
court is the only evidence on the subject, but it is not inherently

incredible. Although neither outgoing parcel was logged as legal
mail,

Brown's

testimony

is

partially

corroborated

Respondent's receipt of the January Notice,

by

the

and an accompanying

cover letter addressed to this court on January 16, 2013. ECF No.

32-2.

The

Respondent

contradict Brown's

concedes

he

sworn statement

is

that

not

able

the Notice

to

directly

was mailed as

alleged. ECF No. 32 at 4.
Other

than

by

its

addressee,

Brown

did

not

identify

the

January Notice as outgoing legal mail and the January Notice was
not stamped or logged as legal mail by the Augusta Mailroom staff.
Brown also did not

certify

the

date

of

depositing

Notice in the prison mails as provided under 28 U.S.C.

Petition, ECF No. 1 at 15

the

January

§ 174 6. See

(certifying date petition was placed in

prison mailing system).
When

he

did

not

receive

any

acknowledgment

of

the

January

Notice,

Brown

inmate,

to

appeal.
learned

arranged

contact

for Bettie Ward,

the court

the

inquiring as

spouse of a

to

fellow

the status of

his

Bettie Ward telephoned the court in late February 2013 and
that

communicated

second,

the

January

this

Notice

information

textually

identical

had

to

not

Brown

Notice

of

arrived.

who

Bettie

arranged

Appeal

to

along

Ward

mail

with

a

a

Memorandum requesting a Certificate of Appealability (the "February
Notice").

Brown

depositing

it

sent
in

February 26, 2013.

the
the

February
prison

4,

2013.

mail

to

this

system

on

court
or

by

about

The February Notice was identified and logged

as legal mail on February 27, 2013.
March

Notice

The

envelope

The February Notice arrived

containing

the

February Notice

is

stamped as "Outgoing Legal Mail" by the Augusta Facility. ECF Nos.
18-2,

19-2.

Several other letters received from Brown during the

litigation in this court were also stamped "Outgoing Legal Mail" by

the Augusta Facility. See,
Between

December

1,

e.g.,
2012,

ECF Nos.

9-2,

and March

31,

28-2,
2013,

30-2.
Brown mailed

three items identified as legal mail: the February Notice, mailed

February 27,

2013;

and two items

mailed March

1,

Respondent and to this court's Alexandria division.

2013,

to the

No other legal

mail was logged for Brown during this time period.
It is therefore ORDERED that the record be supplemented with
the factual

findings set

forth above and returned to the

Fourth

Circuit Court of Appeals for further consideration in connection

with Brown's pending proceedings in that court.
The

Clerk

is

DIRECTED

to

mail

a

copy

of

this

Order

petitioner and to counsel of record for respondent.

/s/

Rebecca Beach Smith
Chief

IInited States District Juefre

REBECCA
!CA

BEACH SMifH

CHIEF UNITED

January
>ry

"S
3 , 2014

STATES

°

DISTRICT

JUDGE

to