United States v. Wade Allen Wheat

1 The Honorable Joseph E. Stevens, Jr., late a United States District Court Judge
for the Western District of Missouri.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 98-1343
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Odell A. Nelson, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri
United States of America, *
* [UNPUBLISHED]
Appellee. *
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Submitted: March 15, 2001
Filed: December 6, 2001
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Before McMILLIAN, BRIGHT, and RICHARD S. ARNOLD, Circuit Judges.
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PER CURIAM.
Federal prisoner Odell Nelson appeals the district court’s1 order dismissing his
28 U.S.C. § 2255 petition as untimely. Because the timeliness question is dispositive,
this court ordered the case held in abeyance pending the decision in Nichols v.
Bowersox, 172 F.3d 1068 (8th Cir. 1999) (en banc). We now reverse the district

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court order dismissing Nelson’s petition and remand the case to the district court for
further consideration.
Nelson’s drug trafficking convictions became final in 1985, when he was
sentenced to a 144-month prison term and a six-year term of special probation. His
§ 2255 petition challenging the special probation term was signed April 15, 1997, was
received “in chambers” by the district court on April 25, 1997, and was stamped
“filed” by the clerk on May 12, 1997. The government moved to dismiss the petition
as untimely. Nelson replied that his petition was timely because he deposited it (with
first-class postage affixed) in a United States Postal Service mailbox on April 20,
1997. The district court dismissed the petition as untimely, concluding that the
earliest date it could be considered filed was April 25, 1997, the date it was received
“in chambers.”
This court has held that federal prisoners are entitled to a one-year grace
period, see Paige v. United States, 171 F.3d 559, 560 (8th Cir. 1999), ending on April
24, 1997, see Moore v. United States, 173 F.3d 1131, 1135 (8th Cir. 1999), for the
filing of § 2255 petitions. The court also concluded in Moore that federal prisoners
are entitled to the benefit of the prison mailbox rule. Id. Because Nelson stated that
he placed his petition in a United States Postal Service mailbox and made no
representation that he deposited it in a prison mail system, we conclude either that he
was not a prisoner when he mailed the petition or that he chose to bypass the prison
mail system. In either case, we conclude the prison mailbox rule is not available to
him. However, this conclusion does not end our inquiry.
Nelson stated that he deposited his petition in a United States Postal Service
mailbox on April 20, 1997. The petition was received by the district court “in
chambers” on April 25, 1997, and was stamped “received” by the court on that date.
The district court concluded that April 25, 1997 was the earliest date the petition
could be considered filed. This conclusion fails to consider the possibility that the

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petition might have been received by the district court clerk’s office on or before
April 24, 1997, then forwarded to the district court where it was received “in
chambers” on April 25, 1997. If that is the case, the petition would have been timely
filed.
Accordingly, we reverse the district court’s order dismissing Nelson’s petition
as untimely. We remand the case to the district court to determine whether the
petition was received in the district court clerk’s office on or before April 24, 1997,
and for reconsideration of the government’s motion to dismiss in light of that
determination.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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