                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   _____________

                                   No. 98-1271WM
                                   _____________

Kevin B. Paige,                          *
                                         *
                    Appellant,           *
                                         * Appeal from the United States
      v.                                 * District Court for the Western
                                         * District of Missouri.
United States of America,                *
                                         *
                    Appellee.            *
                                   _____________

                            Submitted: November 17, 1998
                                Filed: December 23, 1998
                                  _____________

Before RICHARD S. ARNOLD and FAGG, Circuit Judges, and DAWSON,* District
      Judge.
                           _____________

FAGG, Circuit Judge.

        A jury convicted Kevin B. Paige on three counts of using a firearm during a drug
trafficking crime in violation of 18 U.S.C. § 924(c). Paige appealed, and we affirmed
his conviction and sentence. See United States v. Lee, 886 F.2d 998 (8th Cir. 1989).
The Supreme Court denied Paige’s petition for certiorari. See Paige v. United States,
493 U.S. 1033 (1990). Paige then filed this 28 U.S.C. § 2255 motion to vacate, set
aside, or correct his sentence. The district court dismissed Paige’s motion as untimely


      *
        The Honorable Robert T. Dawson, United States District Judge for the Western
District of Arkansas, sitting by designation.
because Paige did not file it by April 23, 1997. Congress enacted a one-year statute of
limitations for § 2255 motions on April 23, 1996, see 28 U.S.C.A. § 2255 (West Supp.
1998), and federal prisoners whose convictions became final before then had until April
23, 1997 to file their motions, see Brown v. Angelone, 150 F.3d 370, 375 (4th Cir.
1998) (citing other circuits with same view). Paige appeals the dismissal of his motion
as untimely. We affirm.

       Paige first asserts the district court should have deemed his petition timely filed
under Houston v. Lack, 487 U.S. 266 (1988). In Houston, the Supreme Court held that
under Federal Rule of Appellate Procedure 4(a)(1), a notice of appeal by a pro se
prisoner is deemed filed when delivered to prison authorities for forwarding to the
appropriate district court clerk. See id. at 268, 276. We have not yet decided whether
the prison mailbox rule applies to the filing of a § 2255 motion as well as the filing of
a notice of appeal. Although a panel of this court decided the rule applies to the filing
of § 2254 petitions, the state-prisoner counterpart to § 2255 motions by federal
prisoners, that decision was vacated and is currently pending before the court en banc.
See Nichols v. Bowersox, No. 97-3639, 1998 WL 151380 (8th Cir. Apr. 3, 1998).
Even if the prison mailbox rule applies to the filing of § 2255 motions, the rule does not
help Paige. Under the prison mailbox rule, Paige’s motion could be deemed filed when
he deposited it in the prison mail, presumably on the same day he signed it, May 21,
1997, but Paige’s motion would still be filed past the April 23, 1997 deadline.

      Paige asks us to extend the prison mailbox rule to the interprison mailing of the
motion to Paige by his brother. Paige’s brother, an inmate housed in a prison different
from Paige, wrote Paige’s motion for him. According to Paige, his brother mailed the
motion to him in time to meet the April 23 deadline, but prison officials or the postal
service sent the motion to the wrong penal institution and only later delivered the
motion to Paige. As Paige points out, the Court in Houston was concerned that the only
way a pro se inmate can file documents with the district court clerk is by using the
prison mail system, and once the inmate deposits a document in the prison mail for

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forwarding to the district court clerk for filing, the inmate has no control over mail
delays. See 487 U.S. at 273-74. This concern is not implicated here. Although Paige
had no control over the mail delay, he chose to have his brother draft his motion and
to wait for that draft’s arrival in the mail despite the impending due date. Paige asks
us to go beyond Houston and we decline to do so. We simply find no authority for
extending the prison mailbox rule beyond a prisoner’s mailings to the district court
clerk.

        Paige also contends the doctrine of equitable tolling should stall the running of
the one-year limitation period. Even if equitable tolling is available in the context of
a § 2255 motion, see Hoggro v. Boone, 150 F.3d 1223, 1226 (10th Cir. 1998) (available
in § 2254 cases but not in § 2255 cases), the interprison mail delay alleged in this case
does not justify equitable tolling. In the habeas context, equitable tolling is proper
when “‘extraordinary circumstances’ beyond a prisoner’s control make it impossible
to file a petition on time.” Calderon v. United States Dist. Court for the Cent. Dist. of
Ca., 127 F.3d 782, 786 (9th Cir. 1997), cert. denied, 118 S. Ct. 1395 (1998); see Miller
v. New Jersey State Dep’t of Corrections, 145 F.3d 616, 618-19 (3d Cir. 1998); see also
Shempert v. Harwick Chem. Corp., 151 F.3d 793, 797-98 (8th Cir. 1998), pet. for cert.
filed, 67 U.S.L.W. 3323 (U.S. Oct. 29, 1998) (No. 98-709). The situation here was not
beyond Paige’s control. See Shempert, 151 F.3d at 798. Paige chose someone in
another prison to draft his motion. When the deadline drew near, Paige could have
drafted his own motion or sought the help of a legal aide in his own prison. No
affirmative misconduct on the prison’s part lulled Paige into inaction. See id. Indeed,
Paige’s counsel stated at oral argument that it was unclear whether the delay was caused
by the mailroom in the brother’s prison or the United States postal service. Simply put,
when Paige decided to count on someone in another prison to draft his motion and mail
it to him through the prison and U.S. mail systems, he voluntarily took the risk of a late
delivery.




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      Because Paige’s § 2255 motion was untimely, the district court properly
dismissed it. We thus affirm the district court.

     A true copy.

           Attest:

                    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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