Opinion
CIVIL ACTION NO. 1:01-CV-094-BG (USCA No. 02-11062)
January 30, 2003
ORDER
The United States Court of Appeals for the Fifth Circuit remanded this case for a determination as to the date Plaintiff delivered his notice of appeal to prison officials.
In response to this Court's Order, the Texas Department of Criminal Justice, Institutional Division has provided the Court with an authenticated copy of the Robertson Unit outgoing legal, special, and media mail logs for the period from August 12, 2002, through September 16, 2002. Plaintiffs notice of appeal is dated September 11, 2002, and was filed by the Clerk on September 16, 2002. According to the mail log, Plaintiff sent one item to the Clerk for the Abilene Division and one item to the Fifth Circuit on September 14, 2002.
Plaintiff filed a "Motion to Reconsider Notice of Appeal" and a "Submission of Document" in support of his argument that he placed his notice of appeal in the prison internal mail system on September 11, 2002, as certified in his notice of appeal. He alleges that his "notice of appeal was placed in the box marked United States mail on Sept. 11, 2002, and by way of indigent postage." In his "Submission of Document," he advises the Court that the prison policies allow the mail room 48 to 72 hours to get correspondence out to the United States Post Office.
According to TDCJ-ID Correspondence Rule 3.9.1.7 "all outgoing mail, including packages, will be delivered to a U.S. Postal Officer within forty-eight (48) hours, except on weekends or holidays when seventy-two (72) hours is allowed."
Plaintiff also points out in his "Motion to Reconsider Notice of Appeal" that he filed a "Motion to Object to the Findings and Recommendation" prior to the time he filed his notice of appeal. He certified that he placed that motion in the prison mail system on August 20, 2002, eight days after the judgment was entered. The motion was filed by the Clerk on August 23, 2002, and the prison mail log indicates that Plaintiff sent mail to the Abilene Clerk's Office on August 22, 2002. Plaintiff's "Motion to Object" was construed as a motion for reconsideration of the court's dismissal in this case and was denied on October 21, 2002.
Pursuant to Fed.R.App.P. 4(B)(i), Plaintiff's notice of appeal filed after he filed his motion for reconsideration would become effective upon the entry of the order of October 21, 2002, disposing of his motion for reconsideration.
SO ORDERED.
This case is hereby returned to the United States Court of Appeals for the Fifth Circuit for further proceedings.
Plaintiff's Motion for Appointment of Counsel, with supporting Memorandum of Law; Declaration in Support of Appellant's Motion for Appointment of Counsel, with certified TDCJ-ID In-Forma-Pauperis Data Sheet; Motion to Suspend; and Appellant's Brief, all filed by the District Clerk on December 8, 2002, are matters to be considered by the Appellate Court. To the extent this Court should rule on Plaintiff's motions, they are denied, subject to being refiled with the Fifth Circuit.