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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-10855
Non-Argument Calendar
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D.C. Docket Nos. 1:16-cv-24322-FAM; 1:14-cr-20345-FAM-3
MICHAEL BURKE,
Petitioner - Appellant,
versus
UNITED STATES OF AMERICA,
Respondent - Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
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(March 1, 2019)
Before TJOFLAT, JORDAN and JILL PRYOR, Circuit Judges.
PER CURIAM:
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Michael Burke, a federal inmate proceeding pro se, appeals the district
court’s order denying his
28 U.S.C. § 2255 motion to vacate. The district court,
without holding an evidentiary hearing, denied Burke’s motion as barred by the
applicable one-year statute of limitations. After review, we vacate and remand for
further proceedings.
Burke, who is serving an 87-month prison sentence, signed and dated a pro
se § 2255 motion on March 3, 2016. The date stamp on the envelope in which he
sent his motion indicated that it was processed through the prison mail system on
October 5, 2016. In an October 17, 2016 letter to the district court, Burke stated
that he had not heard word from the court about his Ҥ 2255 submitted in March,
2016.” Doc. 6 at 1.1 Burke attached to his letter a prior letter to the court, dated
June 23, 2016, in which he stated that as of that date he had not yet heard anything
regarding his “§ 2255 submitted in March, 2016.” Id. at 2.
Without ordering a response from the government, a magistrate judge
recommended that Burke’s § 2255 motion be dismissed as untimely because, using
the October 5, 2016 date stamped on the envelope, Burke’s motion was filed more
than a year after his conviction became final. The magistrate judge acknowledged
that the motion was dated March 3, 2016, but found that October 5 was the date
that Burke provided the motion to prison officials for mailing.
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“Doc. #” refers to the numbered entry on the district court’s docket.
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Burke objected to the magistrate judge’s report and recommendation. Along
with his objection, Burke filed an affidavit in which he stated that he “personally
placed into the prison mail system [his] § 2255 signed under Oath on March 3,
2016.” Doc. 8 at 11. Burke also stated that he personally had seen inmates
working in the mail room and delivering inmate mail in violation of prison rules, a
fact that “lends credence that maybe some mail, if for some reason, doesn’t go
out,” that piece of mail could be wrongfully in the hands of another inmate. Id.
Burke reiterated that he sent letters to the court in June and October to be
“proactive in seeking information” about his case. Id.
Over Burke’s objection, the district court adopted the magistrate judge’s
report and recommendation and dismissed Burke’s motion as untimely. Burke
appealed, and this Court granted him a certificate of appealability on whether the
district court erred in dismissing his motion as time-barred without an evidentiary
hearing or a response from the government.
We review de novo the dismissal of a § 2255 motion as time-barred. Outler
v. United States,
485 F.3d 1273, 1278 (11th Cir. 2007). As relevant here, Burke
was required by statute to file his motion within one year of “the date on which the
judgment of conviction bec[ame] final.”
28 U.S.C. § 2255(f)(1). Burke’s
conviction became final on March 17, 2015. See Fed. R. App. P. 4(b)(1)(A). He
therefore had until March 17, 2016 to file a § 2255 motion. If Burke filed his
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motion on March 3, 2016—the date on which his motion was signed—then his
motion was timely.
Under the prison mailbox rule, an inmate’s pro se § 2255 motion is deemed
filed on the date it was delivered to prison authorities for mailing. Jeffries v.
United States,
748 F.3d 1310, 1314 (11th Cir. 2014). Absent evidence to the
contrary, we presume that a movant delivered his motion to prison authorities on
the date he signed it.
Id. The government bears the burden of proving that the
motion was delivered to prison authorities on a different date.
Id.
On appeal Burke argues that the district court erred in dismissing his motion
as untimely. He contends that the court’s conclusion that he filed his motion in
October 2016 violated the prison mailbox rule’s presumption of filing upon
delivery to prison authorities. He says that presumption should be honored
because he swore under oath that he delivered his motion to prison authorities on
March 3, 2016, swore that he had observed violations of prison mailroom policy,
and included in the record two letters mailed between March and October 2016 in
which he inquired into the status of his motion. In any event, Burke argues, the
government has presented no evidence to rebut the prison mailbox rule’s
presumption. The government agrees that the district court erred, acknowledging
that the prison mailbox rule gave rise to a presumption that Burke’s motion was
filed on March 3 and that the government lacked an opportunity to meet its burden
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to overcome that presumption. Thus, the government argues, we should vacate and
remand for further proceedings.
We agree with both parties. Burke was entitled to a presumption that he
delivered his § 2255 motion for filing on March 3, 2016. He also presented
evidence in support of that presumption via his affidavit and the June and October
letters to the court. The government has not rebutted the presumption. Thus, the
district court erred in finding, without hearing from the government or holding an
evidentiary hearing, that the presumed filing date should not apply and that the
October 5, 2016 date—which would render Burke’s motion untimely—should
instead apply. Thus, we vacate the district court’s dismissal of Burke’s § 2255
motion and remand for further proceedings consistent with this opinion.
VACATED AND REMANDED.
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