Tenth Considers "Prison Mailbox Rule"; Jury Instruction in Alien in Possession of Firearm Case

US v. Lindsay, No. 07-3180 (10th Cir. 2/7/08) (unpublished): The Tenth Circuit dismisses the 2255 petitioner's appeal on the grounds that the notice of appeal was filed late on June 18, 2007. It declines to apply the prison mailbox rule even though 1) the petitioner had until June 15, 2007 to file; 2) the NOA and certificate of service were dated June 13, 2007; and 3) the envelope in which he mailed the documents to the district court was stamped as "received" on June 14, 2007 by the prison. Despite these facts, the Tenth concludes that Defendant did not allege or prove that he made timely use of the prison's legal mail system or timely use the regular mail system in combination with a notarized statement or declaration under penalty of perjury of the date on which the documents were given to prison authorities.

US v. Avila-Gonzalez, No. 07-8048 (10th Cir. Feb. 7, 2008) (unpublished): Tenth affirms the defendant's conviction for being an illegal alien in possession of a firearm. The district court properly rejected the defendant's requested jury instruction that would have asked the jury to find that the firearm had moved in interstate commerce as part of a commercial transaction. The Tenth affirms that all that is required is proof that the gun moved from one state to another.