Prisoner Gets Chance to Show He Timely Mailed His Petition

U.S. v. Spence, 2015 WL 5235790 (9/9/15) (Okl.) (unpub'd) - The 10th shows some leniency regarding proof of mailing. In this case, the prisoner's § 2255 motion arrived at the district court 3 days after the one-year statute of limitations expired. He signed a preprinted § 2255 form which provided for a declaration that he placed his motion "in the prison mailing system" on a certain date. The district court ruled Mr. Spence could not take advantage of the prisoner-mailbox rule because he hadn't said he used the prison's legal mail system or that such a system was unavailable. The government moved to dismiss on timeliness grounds. Mr. Spence responded that he used the prison's legal mail system. The district court nonetheless found Mr. Spence's assertions insufficient. The 10th agrees that the district court was technically correct because Mr. Spence had not made his prison-legal-mail statements under penalty of perjury. But the 10th says the government's motion did not give Mr. Spence fair notice of the under-penalty-of-perjury requirement. Mr. Spence could hardly be blamed for using a form that other circuits find sufficient to invoke the prisoner mailbox rule. And he made the requisite declaration in his response. So the 10th remands with instructions to allow Mr. Spence to provide the necessary allegations in the proper form to render his petition timely.