filed: January 3, 1989; As amended March 17, 1989.
On Appeal from the United States District Court for the District of New Jersey, D.C. Crim No. 85-00433-01.
Becker, Hutchinson and Cowen, Circuit Judges (Motions Panel D).
This is an appeal by a federal prisoner, acting pro se, from an order of the district court denying the motion to correct his presentence investigation report pursuant to Fed. R. Crim. P. 32. The threshold question before us is whether appellant filed his notice of appeal within the time specified by Rule 4(b) of the Federal Rules of Appellate Procedure. If the appeal was untimely, we lack jurisdiction to consider it. For the reasons that follow, we conclude that in computing the timeliness of filings which are jurisdictional in nature, any delay by prison officials in transmitting notice of a final order or judgment to an incarcerated pro se litigant should be excluded from the computation. Because the effect of prison delay on the timeliness of this appeal is unclear on the record, we will vacate the order of denial, and remand to the district court to make the necessary factual determinations.
Appellant, Faustino Grana, is an inmate at the Metropolitan Correctional Center (MCC) in New York, maintained by the U.S. Bureau of Prisons. On February 5, 1986, appellant pled guilty to one count of possession with intent to distribute approximately one and one-half pounds of cocaine, a Schedule II controlled substance. n.1 [Footnote Omitted] On March 12, 1986, he was sentenced to five years imprisonment. Instead of filing a direct appeal, appellant began a series of collateral attacks on his sentence, starting with a motion to reduce his sentence, pursuant to Federal Rule of Criminal Procedure 35. The district court denied this motion by order entered April 10, 1986. Appellant then moved to vacate sentence pursuant to 28 U.S.C. § 2255. The district court denied that motion on October 7, 1986.*fn2 Pursuant to a plea agreement, the remaining counts were dismissed.
On October 7, 1986, approximately seven months after sentencing, appellant filed the first of several motions aimed at correcting alleged inaccuracies in his pre-sentence investigation report (PSI) pursuant to Federal Rule of Criminal Procedure 32.*fn3 The procedural history of the motions and the court's corresponding orders is set out in the margin.*fn4 Appellant appeals the district court's final order, entered April 18, 1988, denying his motion to hold the Bureau of Prisons in contempt.
Appellant filed a notice of appeal from this order on May 13, 1988, twenty-five days following the entry of the district court's final order, and fifteen days out of time. Fed. R. App. P. 4(b). Appellant contends that MCC negligently handled his incoming mail, and as a result he did not receive the district court's final order until May 5, 1988, after the expiration of the appeal period. He therefore contends that his appeal should be treated as filed within the jurisdictional time limits.
Rule 4(b) provides that "in a criminal case the notice of appeal by a defendant shall be filed in the district court within 10 days after the entry of the judgment or order appealed from." The timely filing of a notice of appeal is a mandatory jurisdictional prerequisite to the right to appeal. United States v. Robinson, 361 U.S. 220, 224, 4 L. Ed. 2d 259, 80 S. Ct. 282 (1960); Rothman v. United States, 508 F.2d 648, 651 (3d Cir. 1975). Because appellant filed his notice of appeal more than ten days after the entry of the district court's final order, we must determine whether we possess jurisdiction to consider the merits. See Bender v. Williamsport Area School Dist., 475 U.S. 534, 106 S. Ct. 1326, 1331, 89 L. Ed. 2d 501 (1986); Lovell Manufacturing v. Export-Import Bank, 843 F.2d 725, 729 (3d Cir. 1988).
Appellant acknowledges that his appeal is technically out of time, but argue that he has proffered a compelling justification for his late filing. As we have noted, he claims that the prison, through its own negligence, did not deliver the court's final order until seven days after the expiration of the time for his appeal. Furthermore, appellant alleges that the Bureau of Prisons failed to comply with its own policy of tracking incoming legal mail by logging the date of the mail's arrival and the date of the mail delivery to the intended recipient.*fn5 He argues that it would be unfair to hold him responsible for MCC's negligence and that this court must grant him his opportunity to have his appeal heard.*fn6
In Houston v. Lack, 487 U.S. 266 108 S. Ct. 2379, 101 L. Ed. 2d 245 (1988), the Supreme Court addressed the effect of delay in transmission of court papers by prison authorities on the timeliness of a notice of appeal. Houston held that pro se prisoners' notices of appeal are deemed "filed at the moment of delivery to prison authorities for forwarding to the district court". The Court reasoned that pro se prisoner litigants have no control over delays in the prison authorities' processing of legal mail and that a prison's failure to act promptly cannot bind them. Id. at 2385. The Court observed that pro se prisoners have no choice but to entrust their notices of appeal to prison authorities for forwarding to the court clerk. Therefore, it held that the moment at which the pro se prisoner litigant loses physical control over the notice of appeal by delivering it to the prison authorities for transmission to the court is the moment at which the notice of appeal is deemed filed. Accordingly, the Supreme Court found that the appellant in Houston filed his notice within the requisite 30-day period when, three days before the deadline, he delivered the notice to prison authorities for forwarding to the district court.*fn7
The appellant in this case was faced with a situation too similar to be meaningfully distinguishable from Houston. Like the appellant in Houston, Mr. Grana also lost control over the timeliness of his appeal, and had no choice but to depend upon the prison authorities to deliver to him the notice of the entry of a final order in his case. In addition, appellant's lack of freedom barred him from contacting the district court clerk's office personally to inquire as to the status of his case. Indeed, the facts of the instant appeal, a criminal case, present an even more compelling argument for considering prison delay than the facts of ...