Ingram, Edmund v. Jones, Eddie ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2766
EDMUND INGRAM,
Petitioner-Appellant,
v.
EDDIE JONES, WARDEN,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 C 6600—Samuel Der-Yeghiayan, Judge.
____________
No. 06-2879
MALCOLM RUSH,
Petitioner-Appellant,
v.
MATTHEW J. FRANK,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 04 C 1154—J. P. Stadtmueller, Judge.
____________
ARGUED SEPTEMBER 19, 2007—DECIDED NOVEMBER 14, 2007
____________
2 Nos. 06-2766 & 06-2879
Before BAUER, MANION, and WOOD, Circuit Judges.
BAUER, Circuit Judge. Prisoners Edward Ingram and
Malcolm Rush appeal their respective district courts’
decisions denying their petitions for writs of habeas
corpus.1 Both Ingram and Rush filed their notices of
appeal more than 30 days after their judgments. In this
consolidated appeal, we asked the parties to address
appellate jurisdiction in light of Fed. R. App. P. 4(c)(1)’s
language that an inmate’s notice of appeal “is timely if
it is deposited in the institution’s internal mail system
on or before the last day for filing,” although both Ingram
and Rush admittedly failed to affix first-class postage
at the time their notices were deposited for mailing.
Because we find that Ingram’s petition was timely, we
have jurisdiction to hear his appeal.2 Because we find
that Rush’s petition was untimely, we affirm the denial
of his petition.
I. Background
Edmund Ingram was a prisoner at Stateville Correc-
tional Center (“Stateville”), in Joliet, Illinois.3 On
October 14, 2005, the district court for the Northern
District of Illinois entered judgment dismissing Ingram’s
1
Ingram and Rush are represented on this appeal by the same
attorney, Eugene Volokh.
2
Respondent-Appellee Jones concedes in his brief that Ingram’s
petition is timely.
3
On July 13, 2007, we granted a motion filed by Terry McCann,
Warden of Stateville, for permission to move Ingram to Pontiac
Correctional Center, in Pontiac, IL, and ordered the clerk to
substitute Eddie Jones, Warden of Pontiac, as respondent-
appellee.
Nos. 06-2766 & 06-2879 3
habeas petition. Ingram’s notice of appeal from that order
was filed in the district court on November 18, 2005.
Because Ingram’s notice was not filed within 30 days of
the judgment, we ordered him to file either (1) a memo
addressing our jurisdiction; or (2) a declaration or nota-
rized statement, setting forth the date the notice was
deposited in the prison’s mailing system, and stating
whether first-class postage was prepaid, pursuant to Fed.
R. App. P. 4(c)(1). On July 14, 2006, Ingram filed a
“Jurisdictional Memorandum/Declaration,” stating that
he deposited his notice of appeal in the prison mail system
on November 11, 2005, but failing to disclose whether
or not postage was prepaid when he placed it in the prison
mailbox.
On July 18, 2006, we ordered Ingram to file a supple-
mental declaration setting forth the date of deposit and
stating whether postage was prepaid. On August 2, 2006,
Ingram filed a “Supplemental Notarized Statement,”
setting forth the date of deposit and that postage was “not
prepaid,” but it was “processed and paid by the Institution,
Stateville C.C.”
Malcolm Rush is a prisoner at Waupun Correc-
tional Institution (“Waupun”), in Waupun, Wisconsin. On
May 17, 2006, the district court for the Eastern District of
Wisconsin entered judgment dismissing Rush’s habeas
petition. Rush’s notice of appeal was filed in the district
court on June 23, 2006. Because Rush’s notice was not
filed within 30 days of the judgment dismissing his
petition, we also ordered him to file either (1) a memo
addressing our jurisdiction; or (2) a declaration or nota-
rized statement, setting forth the date the notice was
deposited in the prison’s mailing system, and stating
whether first-class postage was prepaid, pursuant to
Fed. R. App. P. 4(c)(1). On August 2, 2006, Rush filed a
declaration stating that he had deposited his notice of
appeal in the prison mail system on June 9, 2006, along
with a request for “a legal loan exemption for postage
4 Nos. 06-2766 & 06-2879
payments, pursuant to DOC 309.51.”4 Rush also stated
that first-class postage was not paid until on or after
June 19, 2006.
On September 22, 2006, on our own motion, we
(1) consolidated both appeals to determine appellate
jurisdiction; (2) appointed counsel to both appellants;
and (3) ordered briefing limited to the issue of appellate
jurisdiction, in light of Fed. R. App. P. 4(c)(1)’s language
that an inmate’s notice of appeal “is timely if it is depos-
ited in the institution’s internal mail system on or before
the last day for filing.”
Prior to filing any briefs with this Court, on January 24,
2007, Ingram executed a final “Supplemental Declaration,”
stating that he deposited his notice of appeal in the
prison mailing system on November 11, 2005, first-class
postage was prepaid by the prison, and the prison had
precommitted to paying for prisoners’ legal mail without
any need for the prisoner to attach a stamp. Similarly,
on January 26, 2007, Rush executed a final “Supplemental
Declaration,”stating that he deposited his notice of appeal
in the prison mailing system on June 9, 2006, first-class
postage was prepaid by the prison, and the prison had
precommitted to paying for legal mail “under those
circumstances specified by Wis. Admin. Code § 309.51,
without any need for the prisoner to attach a stamp.”
II. Discussion
In addressing the issue of appellate jurisdiction, both
Ingram and Rush argue that (1) the first sentence of Fed.
4
Inmates without sufficient funds in their general account can
receive a loan for up to $200 to pay for legal correspondence. Wis.
Admin. Code § DOC 309.51. Any request to exceed the loan limit
must be for an “extraordinary need,” and is submitted to the
warden for his approval. Id.
Nos. 06-2766 & 06-2879 5
R. App. P. 4(c)(1) is the only mandatory sentence in the
Rule, and because their notices of appeal were deposited
in the prison mailing systems on or before the last day
of filing, they are timely; and that (2) the third sentence
of Rule 4(c)(1) is permissive, in that an inmate may file,
but is not required to file, either a declaration in compli-
ance with 28 U.S.C. §1746 or a notarized statement, either
of which must set forth the date of deposit and state that
first-class postage has been prepaid; or that (3) even if the
third sentence of Rule 4(c)(1) is mandatory, both prisoners
fulfilled the requirement by filing supplemental declara-
tions that satisfied the two requirements of the third
sentence of the Rule.
The first sentence of Fed. R. App. P. 4(c)(1) states: “If
an inmate confined in an institution files a notice of ap-
peal 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.” Rule 4(c)(1), also
known as the “prisoner mailbox rule,” provides that a
notice of appeal filed by a prisoner is deemed filed on the
date the prisoner deposits the notice in the prison mail
system, and not on the date when it is received by the
clerk of the court. Houston v. Lack, 487 U.S. 266, 275-76
(1988).
The second sentence of the Rule states: “If an institu-
tion has a system designed for legal mail, the inmate must
use that system to receive the benefit of this rule.”
Rule 4(c)(1) requires a prisoner to use a legal mailing
system if the prison has one. United States v. Craig, 368
F.3d 738, 740 (7th Cir. 2004). In the context of this
appeal, Stateville has a separate legal mailing system;
Waupun does not.
The third sentence of the Rule states: “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
6 Nos. 06-2766 & 06-2879
set forth the date of deposit and state that first-class
postage has been prepaid.” Rule 4(c)(1) “requires the
declaration to state two things: 50% is not enough. The
postage requirement is important: mail bearing a stamp
gets going, but an unstamped document may linger.”
Craig, 368 F.3d at 740.
A. Edmund Ingram
Respondent-Appellee Jones concedes that Ingram’s
notice of appeal was timely, because Ingram appeared to
use Stateville’s legal mailing system.5 We agree.
Rule 4(c)(1) requires a prisoner to use a legal mailing
system if the prison has one. Craig, 368 F.3d at 740.
Stateville has a separate legal mailing system, in which
legal mail is logged on a prisoner’s legal mail card.
Ingram’s legal mail log did not reflect any mailing in
November 2005.6 However, his account was not charged
for postage during that time, nor was he obligated to
pay for postage for his legal mail.7 The notice of appeal was
delivered to the district court on November 18, 2005. Thus
the logical inference would be that Ingram used the legal
mailing system, as he did not personally pay for his
postage. We find that Ingram’s notice of appeal
5
Initially, when Ingram filed his “Supplemental Notarized
Statement” on August 2, 2006, Jones filed a response, arguing
that the appeal should be dismissed for lack of jurisdiction
because first-class postage was not prepaid, as required by
Fed. R. App. P. 4(c)(1).
6
Ingram’s declaration, notarized statement, and brief to this
Court does not assert that Ingram satisfied Rule 4(c)(1) by using
Stateville’s legal mailing system.
7
Pursuant to a 1981 consent decree, Stateville is obligated to
provide appropriate envelopes and pay for postage for all legal
mail of the inmates.
Nos. 06-2766 & 06-2879 7
was deposited on November 11, 2005 in Stateville’s
legal mailing system. Therefore, he satisfies the second
sentence of Rule 4(c)(1) and receives the benefit of the
Rule, without our consideration of the third sentence.
B. Malcolm Rush
First, Rush argues that his notice was deposited
within thirty days of the district court’s judgment, and
therefore it was timely and that Rush should not be
required to do anything further. While it is true that
Rush deposited his notice in the mailing system on time,
he is not exempt from compliance with the other require-
ments of the Rule. As we held in Craig, a prisoner may
receive the benefit of the prison mailbox rule if he com-
plies with its requirements, which includes filing a decla-
ration or notarized statement. 368 F.3d at 740.
Rush argues that the third sentence of the Rule gives
the prisoner the option of filing a declaration or notarized
statement, in order to establish a timely filing. This
position is inconsistent with our decision in Craig, where
we held that if a prison does not have a legal mailing
system, the prisoner is required to show, through a
declaration or notarized statement, that his notice
was timely filed in order to benefit from the mailbox
rule. 368 F.3d at 740; see also United States v.
Ceballos-Martinez, 387 F.3d 1140, 1145 (10th Cir. 2004)
(“If a prison lacks a legal mail system, a prisoner must
submit a declaration or notarized statement setting
forth the notice’s date of deposit with prison officials
and attest that first-class postage was pre-paid.”) (empha-
sis in original); Grady v. United States, 269 F.3d 913, 918
(8th Cir. 2001) (“[T]he prison mailbox rule . . . consist[s]
of two requirements. A prisoner must have actually
deposited his legal papers with the warden by the last day
for filing with the clerk. And the prisoner must at some
8 Nos. 06-2766 & 06-2879
point attest to that fact in an affidavit or notarized state-
ment.”). Waupun does not have a separate legal mailing
system, so Rush was required to comply with the third
sentence of the Rule in order to receive its benefits.
Finally, Rush argues that his supplemental declaration
fulfills the third sentence of the Rule, in that it sets
forth a date of deposit, June 9, 2005, and that he states
postage was prepaid, because at the time of deposit,
Waupun had precommitted to paying his postage. This
statement is not true. Although prisoners have right of
access to courts, they do not have right to unlimited free
postage. Gaines v. Lane, 790 F.2d 1299, 1308 (7th Cir.
1986). Unlike Stateville, Waupun does not have a
separate legal mailing system, nor does Waupun provide
free postage for all legal mail of inmates. Prisoners
are required to pay for their own legal correspondence,
and are given a $200 loan allowance for supplies, photocop-
ies, and postage for this purpose. In the event that a
prisoner exceeds his allowance, he may request a loan
exemption from the warden if the prisoner demonstrates
an “extraordinary need.” Wis. Admin. Code § DOC 309.51.
The underlying issue is whether Rush’s statement in
his declaration that “postage was prepaid by the institu-
tion” satisfies the requirement of the third sentence of
Rule 4(c)(1) if the institution was not, in fact, obligated to
pay for the postage at the time of deposit. At the time
Rush deposited his notice, his postage was not prepaid
by the institution, although he indicated that it was
prepaid. Waupun was not precommitted to pay for his
postage. Furthermore, Rush had exceeded his $200 loan
balance, and had not received an exemption from the
warden at the time he deposited his notice.8 The state-
8
The warden’s letter granting an exemption for a loan is dated
June 19, 2006, ten days after Rush deposited his notice of appeal.
Nos. 06-2766 & 06-2879 9
ment in Rule 4(c)(1) that “first-class postage has been
prepaid” encompasses the notion that the postage has
actually been prepaid, either by the prisoner or by the
institution. While the declaration need not be deposited
concurrently with the notice of appeal, he must ensure
that the statement is true as of the time the notice is
deposited. “Respect for the text of Rule 4(c) means that
represented prisoners can use the opportunity it creates;
respect for the text equally means that prisoners must use
that opportunity in the way the rule specifies.” Craig, 368
F.3d at 740. If we allowed prisoners to file declarations
under Rule 4(c)(1) and assert a blanket statement that
“postage has been prepaid” without verifying that they
have the funds or the entitlement to do so, we would
give them our stamp of approval to violate the timeli-
ness requirement of the Rule. Postage was not prepaid
at the time of deposit because Rush did not secure his
right to an exemption for a loan from the warden. There-
fore the statement in his declaration that Waupun had
“precommitted” to paying for the postage as of June 9,
2006, is not true, and does not satisfy the requirements
of Rule 4(c)(1).
III. Conclusion
For the aforementioned reasons, we affirm the dismissal
of Malcolm Rush’s petition because his notice of appeal
was untimely. We do have appellate jurisdiction over
Edmund Ingram’s notice of appeal because it was
timely, and we order the parties to brief the issues on
the merits.
10 Nos. 06-2766 & 06-2879
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-14-07