GUY RALPH PEREA, Petitioner-Appellant, v. GEORGE W. BUSH, Respondent-Appellee.

"....procedural ruling." Adams v. Lemaster , 223 F.3d 1177, 1179 (10th
Cir. 2000).
Specifically, we must determine if the prison mailbox rule, as
articulated in Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101
L.Ed.2d 245 (1988)
487 U.S. 266 (108 S.Ct. 2379, 101 L.Ed.2d 245)
While incarcerated in a Tennessee prison, petitioner drafted a pro se
notice of appeal from the Federal District Court's judgment dismissing
his pro se habeas corpus petition, and, 27 days afterthe judgment,
deposited the notice with the prison authorities for mailing to the
District Court. The date of deposit was recorded in theprison's
outgoing mail log. Becausepetitioner lacked the necessary funds,
prison authorities refused his requests to certify the notice for
proof that it had been depositedfor mailing on the day in question and
to send the notice air mail. Although the record contains no evidence
of when the prison authorities actually mailed the notice or when the
District Court actually received it, the court stamped the notice
"filed" 31 days after the habeas judgment—that is, one day after the
expiration of the 30-day filing period for taking an appeal under
Federal Rule of Appellate Procedure 4(a)(1). For this reason, the
Court of Appeals dismissed the appeal as jurisdictionally out of time.
Held: Under Rule 4(a)(1), pro se prisoners' notices of appeal
are"filed" at the moment of delivery toprison authorities for
forwarding tothe district court. Cf. Fallen v. United States, 378 U.S.
139, 84 S.Ct. 1689, 12 L.Ed.2d 760 (Stewart, J., concurring).
Unskilledin law, unaided by counsel, and unable to leave the prison, a
pro seprisoner's control over the processing of his notice necessarily
ceases as soon as he hands it over to the only public officials to
whom he has access—the prison authorities—and the only information he
will likely have is the date he delivered the notice to those
authorities and the date ultimately stamped upon it. The 30-day
deadline for filing notices of appeal set forth in 28 U.S.C. 2107 ,
which applies to civil actions including habeas proceedings, does not
preclude relief for petitioner, since that statute does not define
when a notice has been "filed" nor in any way suggests that, in the
unique circumstances of a pro se prisoner,it would be inappropriate to
conclude that such filing occurs at the moment of delivery to prison
officials. Such conclusion is not negated by the fact that Rules
3(a)and 4(a)(1) specify that the notice should be "filed with the
clerk of the District Court," since the relevant question is one of
timing, not destination, and neither Rule sets forth criteria for
determining the moment at which the filing has occurred. The general
rule that receipt by the court clerk constitutes filing, although
appropriate for most civil appeals, should not apply in the pro se
prisoner context. Nothing in either Rule 3(a) or Rule 4(a)(1) compels
the conclusion that receipt by the clerk must be the moment of filing
in all cases, and, in fact, a number of federal courts have recognized
exceptions to the general principle.Moreover, the rationale for the
general rule is that the appellant has no control over delays after
thecourt clerk's receipt of the notice—a rationale that suggests that
the moment of filing here should bethe moment when the pro se prisoner
necessarily loses control over his notice: the moment of delivery to
prison authorities for forwarding. The bright-line rule recognizing
receipt by prison authorities as the moment of filing will also
decrease disputes and uncertainty as to when a filing actually
occurred, since such authorities (Unknowned) keep detailed logs for
recording the date and time at which they receive papers for mailing
and can readily dispute a prisoner's contrary assertions. Relying on
the date of receipt, by contrast, would raise difficult questions
whether the prison authorities, the Postal Service, or the court clerk
is to blame for any delay.
"....procedural ruling." to reverse Decision by 10th circuit Court of
Appeals of The United States Court of Appeals - Certificate of Appeal
Granted to GUY RALPH PEREA and Counsel Granted.

--
President of The United States
Guy Ralph Perea Sr President of The United States
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