Fairness in Habeas Petition Filings for Pro Se Prisoners: the Propriety of the Eighth Circuit's Holding in Nichols v. Bowersox

Publication year1998


Creighton Law Review

Vol. 33

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.(fn1)


Before 1996, no statutorily prescribed statute of limitations was in effect in regard to the filing of habeas corpus petitions in federal courts.(fn2) Since no statutory limitation period existed, there was no reason to determine the exact moment that filing occurred.(fn3) Pro se litigants, therefore, did not need to have special rules in effect for their benefit because they suffered no disadvantage due to their status as pro se inmates.(fn4) However, on April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act ("AEDPA"), which amended 28 U.S.C. §§ 2244, 2254, and 2255.(fn5) The AEDPA places a one-year statute of limitations on the filing of petitions for writ of habeas corpus and the filing of motions attacking sentence under the statute' s purview.(fn6) The one-year statute of limitations, under the AEDPA, begins to run at the latest of four trig-gering events, including "the conclusion of direct court review or the expiration of the time available for seeking such review" and "the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed."(fn7) The other triggering events include the date when the constitutional right sought to be enforced was initially recognized by the United States Supreme Court, and "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence."(fn8) After the effective date of the AEDPA, litigants making claims under the statute's provisions are subject to a one-year statute of limitations for filing their petition or motion.(fn9)

In Houston v. Lack,(fn10) the United States Supreme Court held that a pro se inmate's notice of appeal was filed at the moment he delivered the notice to prison authorities for forwarding to a district court, announcing the "prison mailbox rule" for pro se prisoners.(fn11) Later, in Nichols v. Bowersox,(fn12) the United States Court of Appeals for the Eighth Circuit applied the "prison mailbox rule" to a pro se prisoner's habeas corpus petition in determining when the prisoner had filed his petition.(fn13) The Eighth Circuit also announced that "for the sake of consistency," the same requirements that apply to notices of appeal also apply to habeas petitions filed by a pro se prisoner.(fn14) A pro se prisoner must place his petition in the prison's "internal mail system on or before the last day for filing" and, furthermore, the prisoner must use the prison's legal mail system, if available.(fn15) In Nichols, the Eighth Circuit concluded that a petitioner whose conviction was final before the enactment and effective date of the AEDPA should be granted a one-year grace period - equivalent to the statute of limitations imposed by the AEDPA - in which to file a petition for habeas corpus.(fn16)

This Note will first review the facts and holding of Nichols.(fn17) This Note will then examine cases that have applied and have declined to apply the prison mailbox rule in various contexts.(fn18) This Note will then examine the Nichols ruling in relation to the cases from these different courts.(fn19) In so doing, this Note will argue that the Eighth Circuit in Nichols: (1) correctly held that a one-year grace period should be allowed for the filing of petitions by prisoners whose convictions were final more than one year prior to the AEDPA's effective date; (2) correctly held that the prison mailbox rule should be applied to pro se prisoner's petition for writ of habeas corpus due to the AEDPA's new one-year statute of limitations for these petitions; and (3) correctly concluded that a prisoner should be required to use the prison's mail system for logging outgoing legal mail, if one is available, in order to receive the benefits of the prison mailbox rule.(fn20)


In Nichols v. Bowersox,(fn21) appellant Richard L. Crane was a felon who was convicted of stealing and second-degree burglary in the Circuit Court of Jasper County, Missouri on December 3, 1992.(fn22) On June 28, 1994, his conviction was affirmed in the Missouri Court of Appeals and the mandate for his criminal conviction was issued on July 14, 1994.(fn23)

Crane, acting pro se, prepared a petition for a writ of habeas corpus against Dave Dormire, the Superintendent of the Jefferson City Correctional Facility, to be filed with the United States District Court for the Western District of Missouri and, on April 20, 1997, mailed the petition through the prison mail system.(fn24) The district court clerk provisionally filed his petition on April 29, 1997.(fn25) Subsequently, the district court dismissed the habeas petition as untimely filed under 28 U.S.C. § 2244(d).(fn26) Crane appealed the United States District Court's decision that his petition was untimely filed to the United States Court of Appeals for the Eighth Circuit.(fn27) A divided panel of the Eighth Circuit reversed the judgment and remanded the case for further proceedings in the district court.(fn28) However, the Eighth Circuit Court of Appeals later vacated that opinion and granted the respondent Dormire's request for rehearing en banc.(fn29)

During the en banc rehearing, the Eighth Circuit discussed the provisions of the Antiterrorism and Effective Death Penalty Act(fn30) ("AEDPA") in relation to Crane's appeal.(fn31) One section of the AEDPA, 28 U.S.C. § 2244(d)(1)(A), provides, in part, that a one-year statute of limitations shall apply to a "writ of habeas corpus by a person in custody pursuant to the judgment of a State court" running from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking" direct review.(fn32)

In interpreting the newly enacted AEDPA, the Eighth Circuit, in Nichols, adopted a one-year grace period for the filing of habeas corpus petitions for state court judgments that had become final prior to the enactment of the AEDPA.(fn33) The Eighth Circuit noted that "[w]hen application of a new limitation period would wholly eliminate claims for substantive rights or remedial actions considered timely under the old law, the application is impermissibly retroactive."(fn34) The court further noted that the United States Supreme Court has declared that recently enacted statutes of limitations should allow a reasonable period of time after their effective date for suits based on existing causes of action to commence.(fn35) The Eighth Circuit opined that "a reasonable time after the effective date of the AEDPA for allowing suits to commence upon pre-existing causes of action is one year."(fn36)

The Eighth Circuit stated that the more difficult issue offered by this appeal is "whether or not the [petition was] timely filed - that is, whether [it was] 'filed' within the meaning of 28 U.S.C. § 2244(d) on or before the applicable deadlines."(fn37) The court stated that "[u]ncontradicted evidence in the record indicates that petitioner[] deposited [his] petition[] in [the] prison mail system[] on the same day that [he] signed [his] petition[]"-April 20, 1997.(fn38) The Eighth Circuit's determination of whether Crane had timely filed his petition according to section 2244(d) depended "on whether, for purposes of that statutory provision, a petition is deemed filed on" one of three different dates.(fn39) One possibility is the date the petition is deposited into the prison's mail system.(fn40) Another possibility is the date the petition is received in the office of the district court clerk.(fn41) The final possibility is the date of the occurrence of some other event like the payment of a filing fee or the district court granting a petitioner leave to proceed in forma pauperis.(fn42)

Crane urged the Eighth Circuit Court of Appeals to follow the prison mailbox rule as announced in Houston v. Lack,(fn43) a United States Supreme Court decision.(fn44) The court noted that in Houston, the Supreme Court adopted the prison mailbox rule and applied the rule to notices of appeal from federal district court judgments denying habeas corpus relief.(fn45) The Eighth Circuit recognized that the prison mailbox rule, as its name suggests, "would establish the date of filing as the date on which the prisoner puts the proverbial 'letter' in the proverbial 'mailbox'-in other words, the date on which he or she deposits the petition in the prison mail system."(fn46) The prison mailbox rule, as the court further stated, "traditionally and appropriately applies only to pro se inmates who may have no means to file legal documents except through the prison mail system."(fn47)

The Eighth Circuit Court of Appeals also stated that it granted Crane's request for an en banc hearing in this case to address the meaning of the court's holding in Allen v. Dowd(fn48) in relation to the prison mailbox rule.(fn49) In Nichols, the Eighth Circuit stated that the Allen decision, which did not apply the prison mailbox rule to habeas petitions, was made before the enactment of the AEDPA.(fn50) The court explained...

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