The opinion of the court was delivered by: Karen E. Schreier Chief Judge
ORDER GRANTING RESPONDENTS' MOTION FOR SUMMARY JUDGMENT
Petitioner, Anthony Pierce, filed his petition for a writ of habeas corpus under 28 U.S.C. § 2254 on May 19, 2010. Respondents moved to dismiss his petition, asserting that it was untimely. Pierce argued that his petition was timely filed because he placed the petition in the prison mail system on April 9, 2010. Pierce filed a notarized statement in compliance with the prisoner mailbox rule set forth in the Rules Governing Section 2254 Cases in United States District Courts. This court subsequently converted respondents' motion to dismiss into a motion for summary judgment and appointed counsel to represent Pierce.
On February 24, 2011, this court held an evidentiary hearing to determine whether Pierce was entitled to the benefit of the prisoner mailbox rule. The court now finds that Pierce has not met his burden of proving that he deposited his petition into the prison mail system on or before May 11, 2010. Therefore, respondents are entitled to summary judgment in their favor.
At the time relevant to this order, Pierce was incarcerated at the Mike Durfee State Prison (MDSP) in Springfield, South Dakota. Pierce testified that he was released on parole in September of 2010.
Pierce testified that he attempted to place his § 2254 petition in the prison mail system on April 8, 2010, but no unit staff were available to help him. Pierce testified that on April 9, 2010, he met with Velma Sudbeck, a case manager at MDSP. Pierce asserted that he signed and dated his petition in front of her and sealed it to be mailed. The dates on the petition are April 9, 2010, and April 10, 2010. Pierce asserted that he wrote April 10, 2010, in the line declaring that his petition was placed in the prison mail system on that date because it was his understanding that it would be mailed the next day. During his testimony, Pierce conceded that his memory has been adversely affected by multiple sclerosis. Pierce testified, however, that he remembers the dates relevant to his habeas corpus petition because it was the "most important thing in my life." Pierce also submitted as evidence the contemporaneous notes he kept in prison about his habeas petition, which detailed the relevant dates. Although dated April 9, 2010, and April 10, 2010, Pierce's petition was postmarked on May 18, 2010. The envelope was not stamped by a unit coordinator on the front of it.
Respondents played portions of phone calls Pierce made to his parents from MDSP on April 8, 2010, and April 9, 2010. In the April 8 call, Pierce states he is "going to file habeas." In the April 9 phone call, Pierce asked his father to do some legal research for him so he could send his "paperwork" off. During the conversation, his father stated that he was considering consulting with an attorney in a few weeks and he would not know how to start the legal research. Pierce also stated that he was "curious to hear what the federal court says."
Pierce testified that he meant case law, not the petition, when he referred to his paperwork in the phone calls. He also stated that he communicated with his parents through letters as well as phone calls. Pierce's father, Harold Pierce, testified that he communicated with his son solely through phone calls.
Josh Klimek, a unit coordinator at MDSP, Nicole St. Pierre, who works in the mail room at MDSP, and Velma Sudbeck, a case manager at MDSP testified for respondents. Josh Klimek testified that he was on duty at MDSP on April 8 and 9, 2010. According to Klimek, outgoing mail is inspected by unit staff to ensure that it does not contain contraband and that it is actually legal mail. After Klimek inspects inmate mail, the inmate seals it. Klimek takes inmate mail to the mailroom when he leaves for the day, usually around 5 p.m. Klimek also testified that he generally stamps inmate mail on the back of the envelope. He does not recall inspecting Pierce's mail or stamping it as legal mail. Klimek testified that he is familiar with Pierce's character and considers him to be untruthful.
Nicole St. Pierre testified that she was on duty at MDSP on April 9, 2010, and April 10, 2010. St. Pierre testified that mail sent out from MDSP is sorted around 8 a.m. and is picked up from the MDSP mailroom around 10:15 a.m. Mail that does not arrive in the mailroom prior to that time is sent out the next day. She conceded that there is a small chance that mail could be delayed in leaving MDSP.
Velma Sudbeck testified that she was on duty on April 8, 2010, and April 9, 2010. She does not recall meeting with Pierce on April 9, 2010, or stamping his mail. She testified that she generally stamps inmate legal mail on the front of the envelope. Sudbeck did meet with Pierce on April 12, 2010, regarding a write-up Pierce received on April 9, 2010, for having his television on after hours. Sudbeck also testified that she is familiar with Pierce's character and considers him to be untruthful.
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