On Appeal from the United States District Court for the District of New Jersey
(D.C. Civi No. 97-cv-02507)
Before: BECKER, NYGAARD, and ROTH, Circuit Judges. (MOTIONS PANEL A)
The district court dismissed Donald Burns' petition for a writ of habeas corpus as untimely under 28 U.S.C. Section(s) 2244(d)(1), and granted a certificate of appealability to appeal from this dismissal. We conclude that Burns' petition was timely filed under the principles set forth in Houston v. Lack, 487 U.S. 266 (1988). We will summarily reverse the dismissal, and remand the cause to the district court.
Burns pleaded guilty in New Jersey Superior Court, Law Division, to multiple counts of robbery, aggravated assault, unlawful possession of a weapon, and conspiracy. On September 10, 1987, Burns was sentenced to 100 years in prison with fifty years of parole ineligibility. The Appellate Division modified his sentence to forty years with a twenty-year period of parole ineligibility. The New Jersey Supreme Court denied Burns' petition for certification.
Burns then filed a petition for post-conviction relief in state court, which denied relief. After extensive post-conviction proceedings, the New Jersey Supreme Court denied his petition for certification on September 21, 1995.
On April 22, 1997, Burns submitted his petition for a writ of habeas corpus under 28 U.S.C. Section(s) 2254, to officials at the New Jersey State Prison to be mailed to the Federal District Court for the District of New Jersey. *fn1 The Clerk of the district court received Burns' petition on April 28, 1997. The district court granted Burns' application to proceed in forma pauperis on May 5, 1997, and the Clerk docketed Burns' habeas petition as filed on that date.
In considering whether Burns' petition was timely filed, the district court first recognized that under Duarte v. Hershberger, 947 F. Supp. 146 (D.N.J. 1996), the petition could not be dismissed as untimely under the one-year period of limitation of 28 U.S.C. Section(s) 2244(d)(1) if the petition was filed on or before April 23, 1997. The court also noted Burns' assertion that he had submitted his petition to prison officials on April 22, 1997. Nonetheless, the court concluded that Houston v. Lack, under which a pro se prisoner's notice of appeal is considered filed at the time he submits it to prison officials for mailing, does not apply to habeas petitions. The court thus found that Burns' petition was filed after April 23, 1997, and dismissed it as untimely under Section(s) 2244(d)(1). The court also granted Burns a certificate of appealability to appeal from this dismissal. Burns filed a timely notice of appeal. *fn2
28 U.S.C. Section(s) 2244(d) provides in relevant part:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. ...