United States District Court, M.D. Florida, Tampa Division
D. WHITTEMORE, United States District Judge.
cause is on remand from the Eleventh Circuit Court of Appeals
"for the limited purpose of determining when Mr. Hardin
first delivered his notice of appeal to prison officials for
mailing." (Dkt. 21). Upon consideration, I find that
Petitioner's Notice of Appeal was delivered to prison
officials on December 19, 2018.
against Petitioner was entered on July 10, 2018 (Dkt. 18). On
December 26, 2018, he filed a copy of a Notice of Appeal
dated July 23, 2018 (Dkt. 19). In correspondence, he
represented that he "sent out" the Notice of Appeal
on July 23, 2018 (Dkt. 19-1). In his subsequent Motion to
Accept Notice of Appeal as Timely Filed, he represented that
he "mailed his notice of appeal from prison officials at
Hardee Corr. Inst.," and referenced "Exhibit
A," purportedly the Notice of Appeal he delivered to
prison officials. He represented that "the institutional
mailing stamp reflects July 23, 2018, as the mailing date . .
." (Dkt. 23, ¶¶ 1, 3). Exhibit A, however, was
not attached to the motion.
was directed to file "Exhibit A" to his motion with
a verified statement authenticating it, and Respondent was
directed to file a verified statement from an official with
knowledge from Hardee Correctional Institute, with an
authenticated mail log showing whether Petitioner delivered
his Notice of Appeal to prison officials for mailing on July
23, 2018. (Dkt. 25).
did not respond to the Court's Order. On May 7, 2019,
Respondent filed the affidavit of Gail Gainous, Supervisor of
the Legal Mail logs at Hardee Correctional Institution. (Dkt.
26). Gainous avers that the mail logs do not show outgoing
mail from Petitioner between July 15, 2018 to July 31, 2018.
(Id. ¶ 3-4). She avers that had Petitioner
followed the legal mail protocol of Hardee Correctional
Institution, he would have received a copy of his document
that would include the correctional institution date stamp as
well as his initials and the mailing official's initials.
(Id. ¶ 6). Ostensibly, that would be "Exhibit
A" referred to by Petitioner but not produced.
determination of the date he delivered his notice of appeal
to prison authorities is a factual question for the district
court to resolve on remand." Sanders v. United
States, 113 F.3d 184, 186 n.2 (11th Cir. 1997). In
making this determination, the court "may inquire
further as to the actual facts concerning whether or not, and
when, a notice of appeal was delivered to the prison
authorities." Allen v. Culliver, 471 F.3d 1196,
1198 (11th Cir. 2006). This inquiry begins with the prisoner
mailbox rule, codified in Federal Rule of Appellate Procedure
4(c)(1). Id. at 1198. Under Rule 4(c)(1),
If an institution has a system designed for legal mail, an
inmate confined there must use that system to receive the
benefit of this Rule 4(c)(1). If an inmate files a
notice of appeal 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
(A) it is accompanied by:
(i) a declaration in compliance with 28 U.S.C. §
1746--or a notarized statement-setting out the date of
deposit and stating that first-class postage is being
(ii) evidence (such as a postmark or date stamp) showing that
the notice was so deposited and that postage was prepaid
Id. (emphasis added). If these procedures are
followed, the burden shifts to prison authorities to prove
that the petitioner did not actually deliver his Notice of
Appeal on the date asserted. See Allen, 471 F.3d at
is not entitled to the benefit of the mailbox rule with
respect to the purported July 23, 2018 Notice of Appeal,
because he did not comply with the requirements of Rule 4(c).
To the extent his Motion to Accept Notice of Appeal as Timely
Filed (Dkt. 23) can be construed as "a declaration in
compliance with 28 U.S.C. § 1746," it fails to
state "that first-class postage is being prepaid."
See Rule 4(c)(1). Petitioner is not, therefore, entitled
to the presumption that his Notice of Appeal was filed on
July 23, 2018. Even if he followed the procedures of Rule
4(c), Respondent, through Hardee Correctional officials, has
proven that he did not deliver the Notice of Appeal to them
on July 23, 2018.
contention that he delivered his Notice of Appeal to Hardee
Correctional officials on July 23, 2018 is belied by the
affidavit of Gail Gainous. Her affidavit demonstrates that
there is no record of outgoing mail from Petitioner between
July 15, 2019 to July 31, 2018.1 find, therefore, that he did
not deliver his Notice of Appeal to prison officials on that
date. And the protocol she describes is corroborated by
Petitioner's reference to "the institutional mailing
stamp" he contended would be reflected "as the
mailing date" of "Exhibit A."
as noted, Petitioner failed to comply with the Order (Dkt.
25) directing him to submit "Exhibit A" to his
Motion to Accept Notice of Appeal as Timely Filed, which he
represented was the institutional date stamped copy of his
Notice of Appeal. Nor did he offer an explanation for why he
could not comply with the directive. From this, I infer that
"Exhibit A" does not exist. He has not, therefore,
demonstrated that his Notice of Appeal was delivered to
Hardee Correctional officials on July 23, 2018. ...