                                                                     F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                                    PUBLISH
                                                                      JUN 29 1999
                  UNITED STATES COURT OF APPEALS
                                                                  PATRICK FISHER
                                                                           Clerk
                              TENTH CIRCUIT



 UNITED STATES OF AMERICA,

             Plaintiff-Appellee,

 v.                                                  No. 98-6043

 STEVEN GRAY,

             Defendant-Appellant.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
           FOR THE WESTERN DISTRICT OF OKLAHOMA
                     (D.C. No. CIV-97-744-A)


Submitted on the briefs:

Steven Gray, Pro Se.

Patrick M. Ryan, United States Attorney, Frank Michael Ringer, Assistant U.S.
Attorney, Oklahoma City, Oklahoma, for Plaintiff-Appellee.


Before PORFILIO , McKAY , and LUCERO , Circuit Judges.


LUCERO , Circuit Judge.
       Two issues, the claimed misapplication of the prison mailbox rule to the

filing of a motion pursuant to 28 U.S.C. § 2255 and the effectiveness of counsel

at the guilt and sentencing phases of appellant’s proceedings, are brought to us

for resolution. We conclude that in holding appellant’s motion untimely, the

district court misapplied the mailbox rule because the facility in which appellant

was incarcerated maintains an inadequate system for processing legal mail.

Nonetheless, we affirm the district court’s denial of appellant’s motion because

he failed to demonstrate that his counsel was ineffective.   1



       Appellant Steven Gray pleaded guilty in February 1995 to conspiring

“to possess with intent to distribute and to distribute 15 [later corrected to 14]

ounces of cocaine base, ‘crack’, a Schedule II controlled substance, in violation

of Title 21, United States Code, Section 841(a)(1).” I R., Indictment at 1.

Appellant was sentenced, inter alia, to 151 months’ imprisonment based in part on

the enhancement applicable to drug crimes involving crack cocaine. He did not

take a direct appeal, and he is currently incarcerated in the Federal Correctional

Institution in El Reno, Oklahoma. Proceeding pro se, appellant mailed the present

motion seeking to vacate, set aside, or correct his sentence pursuant to 28 U.S.C.



       1
             After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.

                                            -2-
§ 2255 in April of 1997.    2
                                The district court denied the motion as untimely on the

basis that the motion should have been filed before April 24, 1997,        see United

States v. Simmonds , 111 F.3d 737, 746 (10th Cir. 1997), but was received by the

court clerk on April 30. The district court rejected appellant’s argument that the

date of filing should be considered the day he allegedly mailed his motion, April

21, 1997, because he used the prison’s regular mail system rather than its legal

mail system. Alternatively, the district court concluded that appellant’s claims

fail on the merits. We previously granted appellant’s request for a certificate of

appealability.   3




                                              I

       Because appellant’s conviction became final in 1995, he had one year from

the April 24, 1996, effective date of the Antiterrorism and Effective Death

Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, in which to file his

§ 2255 motion.       See Simmonds , 111 F.3d at 746. According to the certificate of

service attached to the motion, appellant placed his motion “in the institution’s

internal mailbox, first-class postage prepaid, on April 21, 1997, for filing with the

Clerk, United States District Court.” I R., Doc. 39. However, the envelope

containing the motion was postmarked April 29, and stamped as received by the

       2
                 There is a dispute regarding the exact date of mailing.
       3
                 We grant appellant’s motion to file a reply brief.

                                             -3-
court clerk on April 30, and the motion was not filed by the district court until

May 6. In responding to the motion, the government argued that it was untimely

because it was not filed (or received) by the district court prior to the end of the

one-year limitations period. The government also contended that appellant was

not entitled to the benefit of the prison mailbox rule, in which the date of filing is

the date a prisoner delivers legal mail to prison authorities for forwarding to the

court clerk, see Houston v. Lack , 487 U.S. 266, 274-76 (1988), because he used

the institution’s regular mail system rather than its legal mail system. Relying on

United States v. Leonard , 937 F.2d 494, 495 (10th Cir. 1991), the district court

agreed and held that the motion was not timely filed. On appeal, appellant

contends he should receive the benefit of the prison mailbox rule because the

legal mail system used at El Reno does not log in all legal mail.

       In Leonard , we held that where a prison maintains a legal mail system

separate from its regular mail system, a prisoner must use the legal mail system to

be entitled to the benefit of the mailbox rule.      See 937 F.2d at 495 (“A pro se

prisoner who fails to take advantage of the special filing rule applicable to notices

of appeal posted through the legal mail system foregoes the benefits of that

system.”).   4
                 Our analysis relied on   Houston ’s reasoning that “the prison’s legal


       4
              The rule created in Houston and interpreted in Leonard applied to the
filing of notices of appeal, and derived from the fact that, unlike counseled
                                                                       (continued...)

                                               -4-
mail system procedures, by which mail is logged in at the time and date it is

received, provide a ‘bright line rule’ for determining the date of a pro se

prisoner’s ‘filing.’”   Id. Implicit in both Houston ’s and Leonard ’s analyses is the

understanding that legal mail systems automatically log in    all legal mail through

relatively simple, straightforward procedures.    Cf. Koch v. Ricketts , 68 F.3d 1191,

1193 (9th Cir. 1995) (“ Houston assumed that a logging procedure was not only

available for regular first class mail, but was also automatic.”). It is the existence

of such procedures that led to the Court’s adoption of the mailbox rule to reduce

disputes over when a pro se prisoner’s papers are deemed filed:

       [T]he rejection of the mailbox rule in other contexts has been based
       in part on concerns that it would increase disputes and uncertainty
       over when a filing occurred and that it would put all the evidence
       about the date of filing in the hands of one party. These
       administrative concerns lead to the opposite conclusion here. The


       4
        (...continued)
litigants who may take measures to ensure timely filings, “a prisoner acting pro se
has no choice but to entrust his mail to prison officials and cannot adequately
follow up on misdirected mail.”     Leonard , 937 F.2d at 495. Courts including this
one have extended the rule to a variety of other situations involving the timeliness
of pro se prisoner filings, see, e.g. , Dunn v. White , 880 F.2d 1188, 1190 (10th Cir.
1989) (applying rule to objections to magistrate judge’s report in civil rights
case), including the filing of habeas corpus petitions under 28 U.S.C. §§ 2254 and
2244(d), see Hoggro v. Boone , 150 F.3d 1223, 1226 n.3 (10th Cir. 1998);      see also
Nichols v. Bowersox , 172 F.3d 1068, 1074-77 (8th Cir. 1999) (en banc);     Spotville
v. Cain , 149 F.3d 374, 377 (5th Cir. 1998); Burns v. Morton , 134 F.3d 109,
112-13 (3d Cir. 1998). Because the concerns over a prisoner’s ability to ensure
timely filing apply equally to a § 2255 motion, we see no reason why it should not
apply here, given the proper circumstances. The government does not argue to
the contrary.

                                           -5-
      pro se prisoner does not anonymously drop his notice of appeal in a
      public mailbox—he hands it over to prison authorities who have
      well-developed procedures for recording the date and time at which
      they receive papers for mailing and who can readily dispute a
      prisoner’s assertions that he delivered the paper on a different date.
      Because reference to prison mail logs will generally be a
      straightforward inquiry, making filing turn on the date the pro se
      prisoner delivers the notice to prison authorities for mailing is a
      bright-line rule, not an uncertain one.

Houston , 487 U.S. at 275 (citation omitted).

      The legal mail system in force at El Reno does not satisfy   Houston ’s and

Leonard ’s implicit understanding that prison authorities log in all legal mail at the

time it is received. As explained by its inmate systems manager, “[l]egal mail

may be sent from this institution using certified mail or regular mail. Only legal

mail sent by certified mail would be recorded.” I R., Doc. 48, Ex. A at 1. Thus,

the only time legal mail is logged in is when the prisoner pays the extra mailing

fee to send it by certified mail, a practice the Ninth Circuit has found to be

questionable.   See Koch , 68 F.3d at 1193 (“There was no logging procedure

available to Koch that did not involve an additional fee [through certified,

registered or insured mail]. Yet Koch still faced the obstacles that motivated the

Court to adopt the Houston rule in the first place: lack of control over the

progress of this mailing, and the potential for interference by prison officials

whose interests are adverse to the prisoner bringing a § 1983 suit.”).




                                           -6-
      The government does not argue that it can permissibly require an inmate to

pay the additional costs applicable to certified mail before the inmate can benefit

from the mailbox rule,     5
                               but contends that El Reno utilizes another adequate

procedure to record the mailing of noncertified mail. This procedure provides

that the following notification will be placed on the envelope of any noncertified

legal mail:

      P.O. Box 1000
      El Reno, Oklahoma 73036
      Date ____________

      The enclosed letter was processed through special mailing procedures
      for forwarding to you. The letter has been neither opened nor
      inspected. If the writer raised a question or problem over which
      [this] facility has jurisdiction, you may wish to return this material
      for further information and clarification. If the writer enclosed
      correspondence for forwarding to another addressee, please return
      the enclosure to the above address.

I R., Doc. 48, Ex. A at 1-2. According to El Reno’s inmate systems manager,

“[t]he date the envelope        was mailed from the institution would be placed in the

above notification.”     Id. at 2 (emphasis added).




      5
             It may well avoid this tack due to potential access-to-court problems.
Although not directly analogous, an indigent prisoner’s right of access to the
courts does not require provision of unlimited free postage for sending legal mail.
See Twyman v. Crisp , 584 F.2d 352, 359 (10th Cir. 1978). Nonetheless, we are
unaware of any case law permitting an institution to require use of a form of
mailing more expensive than first class mail before the mailbox rule applies to an
inmate’s legal mail.

                                               -7-
       While we do not entirely understand the purpose of this notification, we

conclude that it does not necessarily indicate the date on which legal mail is

presented to prison authorities, which is the pertinent information with respect to

the mailbox rule, because the only date recorded is the date of       mailing .

Moreover, it does not render determination of the date of mailing a

“straightforward inquiry” as    Houston anticipated, but instead relies on the fortuity

of the court preserving the envelope containing a prisoner’s legal mail.          6



       We conclude that because El Reno’s legal mail system does not provide a

log or other record of the receipt by prison authorities of all legal mail sent from

the facility, it does not meet the implicit requirements of       Houston and Leonard .

Appellant therefore should not be barred under        Leonard from receiving the

benefit of the mailbox rule. Because the only evidence of the date appellant gave

his motion to prison authorities for mailing is his certificate of service, which

contains a declaration in compliance with 28 U.S.C. § 1746, that he did so on

April 21, appellant’s motion was timely.      7




       6
              We note that while the government has explained how the El Reno
procedures for handling legal mail work, it has not attempted to explain why the
institution utilizes such seemingly convoluted procedures. On the other hand,
appellant has not explained why he did not use the legal mail system.
       7
              This conclusion makes it unnecessary for us to determine whether
Leonard was good law at the time appellant mailed his motion. For purposes of
consistency, we have presumed that  Leonard ’s restriction on the application of the
mailbox rule, which involved a notice of appeal, would apply equally to the
                                                                      (continued...)

                                             -8-
                                          II

      We turn to the merits. Appellant contends his counsel was constitutionally

ineffective during his plea colloquy and at sentencing for essentially the same

reason—for failing to put the government to its burden of proving that the

conspiracy for which appellant was convicted involved the form of cocaine known

as “crack,” on which appellant’s sentence was based, instead of cocaine powder.



      7
        (...continued)
instant § 2255 motion. However, when the Federal Rules of Appellate Procedure
essentially codified the Houston rule in 1993 in Rule 4(c), see Advisory
Committee Notes regarding 1993 Amendment, they may have superseded
Leonard. That rule, which was unchanged at the time of the relevant events here,
provided as follows:

      If an inmate confined in an institution files a notice of appeal in
      either a civil case or a criminal case, the notice of appeal is timely
      filed if it is deposited in the institution’s internal mail system on or
      before the last day for filing. Timely filing may be shown by a
      notarized statement or by a declaration (in compliance with 28
      U.S.C. § 1746) setting forth the date of deposit and stating that first-
      class postage has been prepaid.

Rule 4(c) (effective December 1, 1993). The Ninth Circuit concluded that this
rule essentially superseded its case law analogous to  Leonard . See Koch , 68 F.3d
at 1193; see also Thomas v. Gish , 64 F.3d 323, 325 (7th Cir. 1995). As written,
the rule does not require use of any particular mail system as long as there is a
proper statement or declaration indicating timely deposit with prison authorities.
Effective December 1998, Rule 4(c) was further amended to add a limitation
similar to that provided by Leonard . The following sentence was added in
between the two sentences quoted above (along with editorial changes to the
second sentence): “If an institution has a system designed for legal mail, the
inmate must use that system to receive the benefit of this rule.” Rule 4(c)
(effective December 1, 1998); see also Nichols , 172 F.3d at 1077 n.5.

                                         -9-
Because the sentence for crack is significantly stiffer than for cocaine powder,

see, e.g. , United States v. Brooks , 161 F.3d 1240, 1247 (10th Cir. 1998) (noting

that “for purposes of calculating a defendant’s base offense level, the Sentencing

Guidelines equate one gram of crack to 100 grams of powder cocaine”), and the

government has the burden at sentencing of proving the drug involved,          see United

States v. Glover , 97 F.3d 1345, 1347 (10th Cir. 1996);     United States v. James ,

78 F.3d 851, 858 (3d Cir. 1996), appellant contends his counsel was ineffective

for failing to put the government to its burden.    See Glover , 97 F.3d at 1349.

Appellant also argues that his counsel’s deficient performance at the plea

colloquy somehow made his plea involuntary.

         To prove his counsel was constitutionally ineffective, appellant must show

that his counsel’s performance was deficient and he was prejudiced by the

deficiency. See Strickland v. Washington , 466 U.S. 668, 687 (1984);         Glover ,

97 F.3d at 1349-50. To the extent appellant contends his counsel’s

ineffectiveness made his guilty plea involuntary, he must show that had counsel

performed effectively, he would not have pleaded guilty and would have

proceeded to trial.   See Hill v. Lockhart , 474 U.S. 52, 58-59 (1985). To prevail

in his contention that counsel should have advised him of a potential defense,

appellant must show that the defense likely would have prevailed at trial.        See id.

at 59.


                                            -10-
       Appellant was convicted of conspiring to possess and distribute a

controlled substance.   See 21 U.S.C. §§ 841(a), 846. His conviction was not

predicated on whether the particular controlled substance was crack or cocaine

powder, see § 841(a); that distinction is only relevant for sentencing purposes

under § 841(b)(1)(A) and U.S.S.G. § 2D1.1.           Cf. Glover , 97 F.3d at 1347

(discussing difference between conviction for methamphetamine and sentencing

for particular type of methamphetamine). Appellant admits that the substance

involved was either crack or cocaine powder, and he does not contend that he

would have pleaded innocent had his counsel not “failed to object to the ambigous

[sic] terms of the factual basis of the plea during the colloquy.” Appellant’s

Mem. of Law in Supp. of Mot. for Certificate of Appealability at 10. Although

appellant contends that his counsel failed to advise him of the mandatory

minimum sentence for a conviction under Count One of the indictment—an

allegation belied by the record   8
                                      —he does not allege he would not have pleaded

guilty had he known of the disparate sentences for crack and cocaine powder.

We thus reject appellant’s claim that his counsel’s failure to request the

government preliminarily to prove a sentencing matter somehow made his plea

involuntary.   See Hill , 474 U.S. at 58.


       8
             Prior to and at the plea hearing, appellant admitted he knew that
there was a ten-year mandatory minimum for conviction under that count of the
indictment.

                                              -11-
       At sentencing, the government has the burden of proving the type of drug

involved to enhance a sentence over that provided by the conviction itself.       See

Glover , 97 F.3d at 1347. Although appellant’s counsel did not put the

government to its burden at sentencing, by that time it was too late. Count One of

the indictment specified “cocaine base, ‘crack,’” and appellant pleaded guilty to

that count. Earlier, he had admitted in his Petition to Enter Guilty Plea that he

had conspired to possess and distribute “crack cocaine base (crack),” I R., Doc.

31 at 7, and admitted at his plea hearing that he dealt with crack,    see I R., Doc.

48, Ex. B at 5-6.   9
                        These admissions relieve the government of any burden it had

at sentencing to show that the drug involved was crack.         Cf. Glover , 97 F.3d at

1347 (“We emphasize that neither the indictments nor the pleas in this case went

beyond the requisite statutory elements by specifying the type of

methamphetamine involved; if they had, subsequent (re)litigation of the issue

might well have been precluded.”) (citations omitted);        see also United States v.

Bush , 70 F.3d 557, 562-63 (10th Cir. 1995) (defendant’s admissions in plea

agreement and at plea hearing and trial of co-conspirators sufficient to support

sentence based on crack).



       9
             Later at the plea hearing when discussing the factual basis for the
plea, the parties and court used the words “cocaine base” and “cocaine” as well as
“crack.” In light of appellant’s earlier explicit admissions that the substance was
“crack,” this later colloquy does not undermine the evidence that it was crack.

                                            -12-
       Perhaps appellant argues that his counsel was ineffective in recommending

that he plead guilty to Count One as written, thereby admitting a sentencing factor

not necessary for conviction and which in turn relieved the government of its

burden at sentencing. If that be the case, it is appellant’s burden to prove

counsel’s deficient performance prejudiced him,       see Strickland , 466 U.S. at 687.

Because he claims that he should not have been sentenced for possession of crack,

he must prove that the drugs central to his conviction were not crack,     cf. Hill ,

474 U.S. at 59 (where ineffectiveness claim based on failure to advise of potential

defense, prejudice inquiry turns on likelihood of success of defense).    10
                                                                               Having

failed to claim the existence of evidence that the drug involved was not crack,

appellant cannot meet the prejudice prong of his ineffective counsel claim.

       Although the district court incorrectly held that appellant’s motion was

untimely, it correctly found that his motion fails on the merits. Therefore, the

district court’s judgment is   AFFIRMED .




       10
             We emphasize that, even though appellant is challenging the ultimate
effect of counsel’s assistance on his sentence, we are examining counsel’s
performance at the guilty plea stage. We are not dealing with a pure sentencing
matter as we were in Glover , where counsel failed to put the government to its
burden at sentencing, and we therefore did not require the appellant to prove his
conviction was based on the drug producing the lesser sentence to prove
prejudice. See Glover , 97 F.3d at 1349-50.

                                           -13-
