United States District Court, W.D. Oklahoma
L. RUSSELL UNITED STATES DISTRICT JUDGE
filed a Motion to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody pursuant to 28 U.S.C. § 2255
(Doc. No. 28). The Court ordered a response thereto, and on
April 5, 2017, the United States filed a Motion to Dismiss,
asserting therein that Defendant's motion should be
dismissed as untimely. (Doc. No. 35). Defendant did not
respond in opposition to the motion or seek an extension of
time in which to respond. Having considered the parties'
submissions, the Court finds as follows.
pled guilty to a single count of illegal re-entry to the
United States in violation of 8 U.S.C. § 1326 and the
Court imposed a sixty-month sentence on November 30, 2015.
Defendant did not challenge his sentence on appeal, and thus
his conviction became final on December 14, 2015, and his
§ 2255 motion was due not later than December 14, 2016.
Although Defendant contends he mailed a § 2255 on
November 14, 2016, the Court never received such filing. It
was not until January 23, 2017, after correspondence between
Defendant and the Court regarding the motion he believed the
Court has received, that the motion was filed. Accordingly,
unless Petitioner is entitled to application of the prison
mailbox rule, his motion must be dismissed as
Houston v. Lack, 487 U.S. 266, 276 (198), the
Supreme Court held that a pro se prisoner's
notice of appeal shall be considered timely if given to
prison officials for mailing prior to the filing deadline,
regardless of when the court receives the documents, provided
that the prisoner provides certain information. Specifically,
“if the prison has a legal mail system, then the
prisoner must use it as the means of proving compliance with
the mailbox rule.” United States v.
Ceballos-Martinez, 387 F.3d 1140, 1143 (10th
Cir. 2004). If, however, the inmate establishes that
his facility does not have a legal mail system, or it is
somehow inadequate, the “mandatory method by which a
prisoner . . . proves compliance with the mailbox rule”
is by submitting a declaration compliant with 28 U.S.C.
§ 1747 or a notarized statement that sets forth the date
upon which the mailing was given to prison officials for
mailing and attests that first-class postage was pre-paid.
Price v. Philpot, 420 F.3d 1158, 1165
(10th Cir. 2005)(quoting
Ceballos-Martinez, 387 F.3d at 1145). The Tenth
Circuit extended Houston, to § 2255 motions in
United States v. Gray, 182 F.3d 762, 764, 765 n. 4
(10th Cir. 1999).
Motion to Vacate was submitted on a form provided for such
motions, which includes the following:
I declare (or certify, verify, or state) under penalty of
perjury that the foregoing is true and correct and that this
motion under 28 US.C. § 2255 was placed in the prison
mailing system on November 22, 2016.
Doc. No. 28. The date is the only portion of the statement
provided by Defendant, the remainder is part of the form.
Although this language approaches sufficient for purposes of
the mailbox rule, it falls short in two ways, leaving Mr.
Rodriguez without the benefit of the rule.
in order to rely on this method, Defendant was required to
first establish that FCI Beaumont Medium, where he is
incarcerated and was at the time he filed the motion, did not
have a prison legal mail system or an adequate legal mail
system. Accordingly, he cannot rely on the second method.
See Price, 420 F.3d at 1166 (“[A]n inmate
seeking to take advantage of the mailbox rule must use the
prison's legal mail system where one is in place. . .
.”). Furthermore, even if Defendant established that
FCI Beaumont Medium did not have an adequate legal mail
system, his declaration fails to indicate that his November
22, 2016 mailing was postage prepaid.
United States v. Smith, 182 F.3d 733, 735 n. 1
(10th Cir. 1999)(mailbox rule did not apply to
inmate's notice of appeal because the declaration of
timely filing did not state that first-class postage had been
prepaid). As such, the Court finds that the Motion to Vacate
filed herein on January 3, 2017, is untimely, and therefore
must be DISMISSED. Finally, a certificate of appealability is
not warranted in this case because reasonable jurists could
not debate whether “the petition should have been
resolved in a different manner or that the issues presented
were adequate to deserve encouragement to proceed
further.” Slack v. McDaniel, 529 U.S. 473, 484
(2000) (internal citation omitted).
 Defendant wrote the Court a letter
received on January 13, 2017 inquiring about his previously
submitted § 2255 motion. The Court immediately responded
via letter that it had not received any such motion. On
January 23, 2017, Petitioner sent a second letter inquiring
about the status of his § 2255 motion and including a
copy thereof. The Clerk of Court filed the motion and letter
in the record.
 Because Defendant did not respond to
the motion to dismiss, the Court is unable to discern whether
a basis for equitable tolling of the statute of ...