Inmate sentenced to 25 years in jail for possessing cell phone wins 'timely' battle

By Elizabeth Young | Mar 30, 2013

NEW ORLEANS – A Texas prisoner has won the right to file a federal habeas corpus petition after a district court dismissed his application as time-barred.

The U.S. Court of Appeals for the Fifth District on March 5 reversed a lower court ruling and remanded the case for further proceedings. The prisoner, Kenneth Richards, was convicted of possessing a cell phone while an inmate of a correctional facility and sentenced to 25 years in prison. His subsequent appeal failed and his conviction became final on Nov. 17, 2009, at the end of the 90-day window for filing a petition for certiorari. He then sough state post-conviction relief and mailed his petition from prison Oct. 12, 2010. The petition was received by the Texas Court of Criminal Appeals 37 days later, and the court eventually denied Richards relief.

Richards next step was to mail an application to the federal district court on Feb. 11, 2011. Rick Thaler, the director of the Texas Department of Criminal Justice, Correctional Institutions Division, moved for a summary judgment on the grounds that the appeal was untimely.

The principle dispute between Richards and Taylor was whether Richards filed his state post-conviction petition before the one-year statutory deadline for filing a federal application expired. A prisoner in state custody has one year to to apply for a writ of habeas corpus in federal court.

Richards maintained that he filed the petition the day he put in in the prison mail system, on Oct. 12, 2010. Thaler argued that the petition was filed the day it was stamped as received by the court, 37 days later on Nov. 18.

Richards claimed that the dates fall within the one-year filing limitation, and are thus timely. The difference in Thaler’s date would mean that Richards missed the deadline. The district court agreed with Thaler that the petition was filed on Nov. 18 and that Richards had missed the resulting deadline.

Circuit Judge Emilio M. Garza, writing the opinion on behalf of himself and Circuit Judges E. Grady Jolly and Priscilla Owen, found that Richards did in fact meet the deadline.

The opinion states that the case comes down to the “prison mailbox rule.” This rule says that pleadings of pro se inmates are considered filed at the time they are delivered to prison authorities because “such prisoners cannot take the steps other litigants can take to monitor the processing of their notices of appeal” and that they can never be sure that their notice will be stamped on time. In the past the Texas Supreme Court only applied this rule to civil cases. However in a 2010 case, Campbell v. State, the Texas Court of Criminal Appeals found that the prison mailbox rule applied to criminal cases as well.

This led the court to conclude that “under Texas law the pleadings of pro se inmates, including petitions for state post-conviction relief, are deemed filed at the time they are delivered to prison authorities, not at the time they are stamped by the clerk of the court.”

Case No. 11-20803.

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