                                                         [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________  ELEVENTH CIRCUIT
                                                            APRIL 29, 2005
                             No. 04-13313                 THOMAS K. KAHN
                       ________________________                CLERK


                  D.C. Docket Nos. 04-00028-CV-1-DHB
                                   01-00020 CR-1

STANLEY RAY GRACEY,

                                                     Petitioner-Appellant,

     versus

UNITED STATES OF AMERICA,

                                                     Respondent-Appellee.

                      __________________________

                Appeal from the United States District Court
                   for the Southern District of Georgia
                      _________________________
                            (April 29, 2005)

Before TJOFLAT, DUBINA and HULL, Circuit Judges.

PER CURIAM:
      Stanley Gracey appeals pro se the district court’s dismissal of his 28 U.S.C.

§ 2255 motion as time-barred. After review, we vacate the district court’s

dismissal and remand the case for further proceedings.

      On June 6, 2002, this Court affirmed Gracey’s sentence and conviction for

conspiracy to possess with intent to distribute methamphetamine. See United

States v. Gracey, No. 01-15850 (11th Cir. June 6, 2002). Gracey claims that on

August 1, 2003, he gave prison authorities for mailing a copy of his § 2255 motion

with sufficient first-class postage. Gracey further alleges that when he did not

receive any response from the district court, he contacted the Clerk of Court in

writing on September 4, 2003, October 16, 2003, and December 17, 2003. Gracey

filed unsigned copies of those letters.

      Hearing no response from the Clerk of Court, Gracey next claims that he

contacted the district court via telephone. At that time, Gracey claims to have first

discovered that his § 2255 motion had not been received. Therefore, on January

31, 2004, Gracey filed, what he claimed to be, a copy of his original § 2255

motion. If Gracey’s § 2255 motion is deemed filed on August 1, 2003, when he

purportedly delivered it to prison authorities for mailing, it is timely. If, however,

his motion is treated as not filed until January 31, 2004, it is untimely.




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      The district court determined that Gracey was not entitled to equitable

tolling of the statute of limitations and therefore dismissed Gracey’s § 2255

motion as untimely. However, the district court should have determined whether

Gracey was entitled to the benefit of the mailbox rule, not whether he was entitled

to some form of equitable tolling.

      Under the mailbox rule, a pro se prisoner’s § 2255 motion will be deemed

filed on the date that the prisoner delivers the motion to prison authorities for

mailing. Houston v. Lack, 487 U.S. 266, 276, 108 S. Ct. 2379, 2385 (1988);

Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001). Furthermore,

the mailbox rule applies even when the motion “is never received or filed by the

court.” Huizar v. Carey, 273 F.3d 1220, 1222 (9th Cir. 2001); see also id. at 1223

(“A prisoner who delivers a document to prison authorities gets the benefit of the

prison mailbox rule, so long as he diligently follows up once he has failed to

receive a disposition from the court after a reasonable period of time.”).

      However, on this record we cannot determine whether Gracey is entitled to

the mailbox rule. Therefore, we remand this case to the district court to determine

whether Gracey, in fact, first gave a copy of his § 2255 motion to prison

authorities on August 1, 2003. In making this determination, the district court is

reminded that this Court has instructed that “the burden is on prison authorities to

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prove the date a prisoner delivered his documents to be mailed.” Washington, 243

F.3d at 1301. Such proof could consist of: (1) a prison log showing no mailing

from Gracey on or about August 1, 2003; or (2) proof that no postage was

deducted from his account on or about that date. This is not meant to be an

exhaustive list, but rather two among many ways the government could establish

that Gracey did not mail his petition in a timely manner under the mailbox rule.

      The Court vacates the dismissal of Gracey’s § 2255 motion and remands

this case for further proceedings consistent with this opinion.

      VACATED AND REMANDED.




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