Summary
remanding case to allow appellant the opportunity to make the requisite showing regarding the timeliness of his notice of appeal
Summary of this case from United States v. DuranOpinion
No. 88-5571.
October 14, 1988.
Chester Logan, Texarkana, Tex., pro se.
Benjamin N. Hamilton, Waco, Tex., for Cent. Freight, Callan Rodriguez.
Steven W. Arronge, City Atty.'s Office, San Antonio, Tex., for Perales Ellis.
Ricardo J. Navarro, Asst. Dist. Atty., San Antonio, Tex., for Cade Sifuentes.
Appeal from the United States District Court for the Western District of Texas.
Before GEE, RUBIN, and SMITH, Circuit Judges.
Appellees John Cade and Ben Sifuentes have filed a motion to dismiss the appeal on the ground that appellant's notice of appeal was untimely. Judgment was signed on June 6, 1988, and entered on June 7, 1988; the notice of appeal, hence, was due to be filed by the thirtieth day from June 7, 1988, which was July 7, 1988. See United States v. Doyle, 854 F.2d 771, 772 (1988). However, the clerk did not receive the notice until July 12, 1988. The notice states, "RESPECTFULLY submitted this 7th day of July 1988, on which date a copy hereof was mailed to counsel of record for the defendants."
The deadline for filing notice of appeal is jurisdictional and is to be strictly construed, see United States v. Doyle, and as to most appellants the failure to put the notice into the hands of the clerk by the thirtieth day would be fatal. Here, however, the appellant is a pro se prisoner. Recently, the Supreme Court held that a prisoner's notice of appeal in a civil case is deemed timely filed if it is delivered to prison authorities, for forwarding to the district court, on or before the thirtieth day following entry of judgment. Houston v. Lack, ___ U.S. ___, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988).
Here, the appellant should be given the opportunity to make the requisite showing. For example, he can make use of the prison mail logs to prove that he tendered the notice of appeal, for mailing, on or before the deadline. See Thompson v. Montgomery, 853 F.2d 287 (5th Cir. 1988).
We REMAND this matter to the district court to make the factual findings from which we can determine whether, under Houston v. Lack, the notice of appeal should be deemed timely. Upon making these findings, the district court shall return the case to this court for further proceedings or dismissal, as may be appropriate.