The opinion of the court was delivered by: Honorable Jerome B. Simandle
SIMANDLE, District Judge:
This matter comes before the Court upon Respondent United States of America's motion to dismiss Petitioner Kevin Boone's section 2255 habeas petition as untimely.*fn1 [Docket Item 4.] The issue before the Court is a narrow question of fact: whether Petitioner handed his habeas petition to a federal employee at either FCI Fort Dix or FCI Cumberland prior to January 8, 2009, as he claims he did, or whether he instead did not mail his petition until shortly before January 16, 2009, but after January 8, 2009, as respondent, the United States, asserts. To decide this question of fact, the Court held an evidentiary hearing on the issue on November 12, 2010, for which Petitioner was appointed counsel, where the Court heard testimony from the Petitioner as well as a second witness supporting Petitioner's claim. After the hearing, Plaintiff offered the declaration of Lieutenant Michael Bridges of the Federal Bureau of Prisons. In light of this evidence, and in the absence of sufficient contradictory evidence by Respondent to meet its burden of proving the affirmative defense of untimeliness, the Court concludes that Petitioner's section 2255 habeas petition was timely filed.
II. BACKGROUND AND PROCEDURAL HISTORY
Petitioner was originally sentenced in this Court on
Declaration of Bureau of Prisons Lieutenant Bridges. [Docket Item 44.] The Court feels, however, that the declaration, while illuminating, does not settle the matter. Thus, the Court will exercise its authority to consider the issue of timeliness of a § 2255 habeas petition sua sponte. United States v. Bendolph, 409 February 20, 2003, on one count of distribution of 62.4 grams of powder cocaine to a term of 225 months imprisonment and 3 years supervised release. [Cr. Docket Item 269.] The Third Circuit affirmed the conviction but vacated the sentence and remanded for re-sentencing under United States v. Booker, 543 U.S. 220 (2005). [Cr. Docket Item 286.] The Petitioner was thereafter re-sentenced in this Court on January 3, 2007 to a term of 180 months imprisonment and 3 years supervised release. [Cr. Docket Item 293.] Petitioner unsuccessfully appealed the re-sentence; certiorari was denied by the United States Supreme Court on January 7, 2008. Boone v. United States, 552 U.S. 1124 (2008).
According to Petitioner's testimony and the certificate of process attached to the petition, Petitioner initially attempted to file his habeas petition in March of 2008 from the FCI Fort Dix Special Housing Unit ("SHU").*fn2 Several months later, after he was transferred to FCI Cumberland, he claims to have discovered that his petition was not sent to the Court as requested. Bureau of Prisons records demonstrate (and Petitioner does not contest) that this discovery took place no later than October 8, 2008. (Resp't Submission of Oct. 28, 2010 at 2 and Ex. A.) Petitioner testified that he subsequently tried to send the petition again to the Court on December 18, 2008, by handing it to an unidentified federal employee at the mail room at FCI Cumberland. The petition's envelope bears a postmark from FCI Cumberland of January 16, 2009. The petition was received by the District Court Clerk's Office on January 21, 2009. [Docket Item 1.] Petitioner claims that, because he handed the petition to a federal employee at FCI Cumberland prior to the one-year deadline, the petition was timely filed under the "prison mailbox rule" of Houston v. Lack, 487 U.S. 266 (1988).
Respondent contends that the petition was untimely under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which imposes a one-year time limit on 2255 habeas petitions. 28 U.S.C. § 2255(f); Kapral v. United States, 166 F.3d 565, 569 (3d Cir. 1999) ("Thus, § 2255's limitation period begins to run on the date on which the defendant's conviction and sentence become 'final.'"). Both parties now agree that the AEDPA time limit expired on January 8, 2009, one year after his direct appeal was denied certiorari.*fn3 Petitioner claims that his petition was timely because he handed it to a prison official for mailing on December 18, 2008, under the "prison mailbox rule" of Houston v. Lack, 487 U.S. 266 (1988). The Government disputed this account, arguing that Petitioner's testimony lacks credibility and claiming that the only objectively verifiable evidence of the date the petition was mailed, the postmark on the petition's envelope, should overcome Petitioner's testimony. Neither side has produced an internal prison mail log recording when the Petitioner handed his envelope to a prison official.
A. Evidence in the Record
1. Petitioner's Evidence Petitioner testified before the Court that he handed his 2255 habeas petition, addressed to this Court and bearing sufficient postage, to federal employees on two separate occasions in 2008, first in March at FCI Fort Dix and, nine months later, in December at FCI Cumberland. He explained that, at the time he delivered his petition to these two employees, neither were known to him and did not identify themselves to him. However, he testified that he has subsequently learned the identity of the Fort Dix employee who took his petition but failed to mail it as requested, naming the individual as "Lieutenant Bridges" before the Court.*fn4 Finally, Petitioner testified that, on December 18, 2008, he delivered the petition to a federal employee at the FCI Cumberland mail room at approximately 11:00 a.m. during a mail room "open house" at FCI Cumberland. He explained that he was not given the opportunity to ask the name of the employee who took his mail from him because the facility required that prisoners move promptly through the line and depart immediately after turning in their mail, giving him no opportunity to ask for the names of the workers accepting the mail.
Petitioner also introduced the testimony of Ikeya Speed, his daughter, to corroborate his testimony. Ms. Speed testified that in April of 2008, she received a letter from the Petitioner in which he told her that he had recently mailed his 2255 petition to the Court. Ms. Speed's letter from her father, dated April 9, 2008, was introduced into evidence, and states: "I already gave my 2255 Petition to an employee here in the SHU and I asked him to place it in the legal mail system here at Fort Dix." (Pet'r Ex. 1.)
Finally, on January 3, 2011, the court received, attached to correspondence from the Respondent, a signed declaration from Lt. Bridges, the property officer at the Fort Dix Special Housing Unit (SHU), who Petitioner alleges accepted Petitioner's 2255 petition in March of 2008. Lt. Bridges' declaration corroborates Petitioner's account in a few, but not all, areas. Lt. Bridges declares that he accepted "paperwork" from Petitioner while Petitioner was in the SHU at Fort Dix, but declares that he cannot remember if Petitioner instructed him to mail the paperwork, or even informed him that it was legal paperwork. (Bridges Decl. ¶ 5.) He also confirms that, rather than mail the paperwork, he instead placed it with Petitioner's personal property that was eventually transferred with ...