                    United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT



No. 98-1271WM

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



      On the court’s own motion the attached opinion is substituted for the opinion
filed December 23, 1998. The judgment entered December 23, 1998, stands.




                                       March 3, 1999




Order entered at the direction of the Court:



Clerk, U.S. Court of Appeals, Eighth Circuit.
                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 98-1271
                                   ___________

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: March 3, 1999
                                 _____________

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

      *
      The Honorable Robert T. Dawson, United States District Judge for the
Western District of Arkansas, sitting by designation.
motion as untimely because Paige did not file it by April 23, 1997. Congress enacted
a one-year statute of limitations for § 2255 motions on April 24, 1996, see 28 U.S.C.
§ 2255 (Supp. II 1996), and federal prisoners whose convictions became final before
then had until April 23 or 24 of the following year to file their motions, depending on
whether the enactment date is counted towards the one-year limitations period,
compare Brown v. Angelone, 150 F.3d 370, 375 (4th Cir. 1998) (April 23); Miller v.
Marr, 141 F.3d 976, 977 (10th Cir.) (same), cert. denied, 119 S. Ct. 210 (1998); Burns
v. Morton, 134 F.3d 109, 112 (3d Cir. 1998) (same), with Flanagan v. Johnson, 154
F.3d 196, 201 (5th Cir. 1998) (April 24); Mickens v. United States, 148 F.3d 145, 148
(2d Cir. 1998) (same). 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 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

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mailed the motion to him in time to meet the April 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 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 it 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

                                          -4-
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.

      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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