7th Circuit Requires Accurate Affidavit From Prisoner To Comply With Mailbox Rule

Malcom Rush was incarcerated in Waupun Correctional Institution in Wisconsin. He appealed after the federal district court denied his petition for a writ of habeas corpus. But Rush’s Notice of Appeal did not get filed within the 30-day deadline.

The issue was whether Rush complied with Federal Rule of Appellate Procedure 4(c), the prisoner mailbox rule. That rule states that the date of filing is the date the prisoner places the mail in the prison mail system. The rule also requires an affidavit by the prisoner that the mail was timely placed in the system and that postage was prepaid.

Rush signed an affidavit that said he placed the document in the mail system timely and that the prison had committed to paying for the postage. But the court ruled that the latter point was not true. Because Rule 4 requires the postage to be paid, the court concluded that Rush’s Notice of Appeal was not timely, thus depriving the court of appellate jurisdiction. “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. Therefore 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).”

Read the whole opinion, Ingram v. Jones, Nos. 06-2766, 06-2879 (12/7/07), by clicking here. (Unameded September 07 opinion.)

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