United States District Court, N.D. Mississippi, Aberdeen Division
M. BROWN UNITED STATES DISTRICT JUDGE.
civil rights action filed by pro se prisoner Ted Stone is
before the Court on remand from the Fifth Circuit Court of
Appeals for a determination of the timeliness of Stone's
notice of appeal. Because Stone timely deposited his notice
of appeal with prison officials, the notice of appeal is
22, 2017, this Court entered an order and separate final
judgment dismissing Stone's federal habeas petition with
prejudice. Docs. #28, #29. Stone acknowledged receipt of the
final judgment on June 1, 2017. Doc. #30.
5, 2017, this Court received a notice of appeal from Stone.
Doc. #31. The notice of appeal is dated June 21, 2017, and
includes a postage stamp dated July 1, 2017.
October 24, 2017, the Fifth Circuit issued an order observing
that, pursuant to 28 U.S.C. § 2107(a) and Federal Rule
of Appellate Procedure 4(a)(1)(A), the final day for Stone to
file a timely notice of appeal was June 21, 2017. Doc. #36.
The Fifth Circuit noted that “[a] prisoner's pro se
notice of appeal is timely filed if deposited in the
institution's internal mail system on or before the last
day for filing.” Finding that “it cannot be
determined from the record in this case whether the
petitioner delivered the notice of appeal to prison officials
for mailing on or before June 21, 2017, ” the Fifth
Circuit remanded the case to this Court for such a
remand, United States Magistrate Judge Roy Percy ordered the
parties to “submit mail logs, affidavits, and/or
additional information relevant to the timeliness” of
Stone's notice of appeal. Doc. #37. On October 26, 2017,
the respondent submitted an affidavit of Gia N. McLeod, the
Director of the Inmate Legal Assistance Program
(“ILAP”) for the Mississippi Department of
Corrections (“MDOC”), along with the
“complete log of all mail sent out through the ILAP
office for Inmate Ted Stone MDOC #160170 between June 1,
2017, and July 31, 2017.” Doc. #38-1.
about November 2, 2017, Stone filed an “Interim
Response to Court Order.” Doc. #40. In this response,
Stone claims that, considering the computation of time under
the Federal Rules of Civil Procedure, his notice of appeal
was timely because it was delivered for mailing within thirty
days of the date he actually received notice of the
Court's judgment. On the same date he filed his interim
response, Stone also filed a motion seeking to compel ILAP to
notarize his affidavit and submit documents. Doc. #41.
November 6, 2017, Magistrate Judge Percy denied Stone's
motion to compel and ordered Stone to submit a declaration
under penalty of perjury “setting forth the date that
his notice of appeal was deposited in the prison's mail
system[.]” Doc. #42. Eight days later, the Court
received from Stone a “Response to Court Order, ”
Doc. #43; an “Objection to State's Response,
” Doc. #44; and a motion to appoint counsel, Doc. #45.
response includes an affidavit which avers that, on Sunday
June 18, 2017, he submitted a written form to ILAP requesting
that ILAP pick up his notice of appeal. Doc. #43 at 2-3. This
written request by Stone represents that the deadline for
filing the notice of appeal was June 21, 2017. Id.
to Stone, ILAP picks up legal mail the Wednesday following
the date of a pickup request. Id. at 2. Under this
schedule, Stone's notice of appeal should have been
picked up Wednesday, June 21, 2017, the notice of appeal
deadline. However, ILAP refused to pick up Stone's ...