                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-6129


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

MARCUS ANTONIO MCNEILL,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:08-cr-00188-F-1)


Argued:   March 19, 2013                    Decided:   May 1, 2013


Before GREGORY, WYNN, and DIAZ, Circuit Judges.


Reversed and remanded by unpublished opinion. Judge Gregory
wrote the opinion, in which Judge Wynn and Judge Diaz joined.


ARGUED: Andrew Barr, DUKE UNIVERSITY SCHOOL OF LAW, Durham,
North Carolina, for Appellant. Shailika K. Shah, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
ON BRIEF: James E. Coleman, Jr., Sean E. Andrussier, Evan Coren,
Emily Spencer Munson, Seth Reich, DUKE UNIVERSITY SCHOOL OF LAW,
Durham, North Carolina, for Appellant. Thomas G. Walker, United
States Attorney, Jennifer P. May-Parker, W. Ellis Boyle,
Assistant United States Attorneys, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
GREGORY, Circuit Judge:

      Marcus      Antonio     McNeill           appeals    the        district          court’s

dismissal of his motion for relief from a federal conviction

under 28 U.S.C. § 2255.             The district court ruled that McNeill’s

error in addressing his petition to the wrong district court

rendered the prison mailbox rule, as articulated in Houston v.

Lack, 487 U.S. 266 (1988), inapplicable.                       As such, the court did

not conduct a factual inquiry into whether McNeill actually sent

his petition -- albeit to the wrong court -- before the statute

of   limitations     expired.         On   appeal,        McNeill         argues    that    his

petition      was    timely        under    the        prison     mailbox          rule    or,

alternately, that the court should consider the petition timely

under the doctrine of equitable tolling.                         We do not reach his

latter      argument.       Instead,       we    reverse       the    district          court’s

ruling that McNeill’s addressing error was fatal, and conclude

that if McNeill sent his petition as he said he did, then the

prison     mailbox   rule     is    applicable.           As    such,      we    remand     for

factual findings in accordance with the instructions herein.



                                            I.

      In     2009,   a    jury      convicted          McNeill       of     conspiracy      to

distribute, and possess with the intent to distribute, 50 grams

or   more    of   crack   cocaine      and       500    grams    or       more     of   powder

cocaine.       The district court sentenced him to 420 months in

                                                  2
prison.   We affirmed the district court’s judgment and sentence

in an unpublished per curiam opinion.                 United States v. McNeill,

372 F. App’x 420 (4th Cir. 2010).               The U.S. Supreme Court denied

certiorari on June 21, 2010, initiating the one-year statute of

limitations    for   habeas       relief    under      28   U.S.C.     § 2255,     to

terminate on June 21, 2011.           See McNeill v. United States, 130

S. Ct. 3487 (2010); 28 U.S.C. § 2255(f).

     After false starts with two attorneys, McNeill enlisted a

fellow inmate, known to him as “Brother Bey,” to help him file

his § 2255 petition pro se.          Bey mistakenly told McNeill to file

his petition with the district court in the Southern District of

Indiana, where McNeill was incarcerated at the time, instead of

with the appropriate district court in the Eastern District of

North   Carolina,    where    McNeill      was    sentenced.     See       28   U.S.C.

§ 2255(a).    According      to   McNeill,       he    filled   out    a    standard

Matthew Bender & Co. form to set out his claims for relief, and

then hand delivered his petition with first-class postage to

prison mailroom staff at the United States Penitentiary in Terre

Haute, Indiana on May 23, 2011.                 McNeill later conferred with

another inmate, R. Casper Adamson, who informed McNeill that he

had mailed his petition to the wrong court.                     McNeill sent a

letter on August 16, 2011, to the Clerk of Court in the Southern

District of Indiana to request confirmation that his petition

had arrived and had been filed.            He did not receive a response.

                                            3
He sent a second letter on October 31, 2011, and received a

standard form response stating:

       The material you have submitted does not appear to be
       intended for filing in the U.S. District Court for the
       Southern District of Indiana and is therefore being
       returned to you. If the material is intended for
       filing in the District Court, please return it and
       include the docket number for the case in which it is
       to be filed.

       There was also a one-sentence handwritten explanation above

the standard form response, “[w]e do not a [sic] case for you in

this district.”

       On November 5, 2011, McNeill wrote a letter to the Clerk of

Court in the Eastern District of North Carolina asking if his

petition   had    been   transferred.        Before    receiving         a   response,

McNeill filed a motion to accept his petition as timely filed

along with a “Sworn and Incorporated Memorandum of Law as Timely

Filed” pursuant to 28 U.S.C. § 1746. The district court in North

Carolina received the motion on December 5, 2011.

       On December 12, 2011, the district court denied McNeill’s

motion to accept the petition as timely filed.                     The court found

that    misplaced    reliance     on    a        jailhouse     lawyer        does     not

constitute the extraordinary circumstances required for a grant

of equitable tolling.

       McNeill   filed   a   motion    for   relief     from       the   judgment     on

December   21,   2011.       McNeill    argued      that     the    district        court

should have applied the “prison mailbox rule,” which establishes

                                             4
that a petition is deemed filed upon delivery to prison mailroom

officials.     Houston, 487 U.S. at 270-72.            The district court

found that the prison mailbox rule did not apply because the

envelope in question was not correctly addressed to the proper

recipient.

     McNeill timely appealed the district court’s decision. We

granted   a   certificate   of   appealability   and    have   jurisdiction

pursuant to 28 U.S.C. § 2253.



                                    II.

     Where a petitioner brings an appeal related to the denial

of a § 2255 motion, we review de novo the legal conclusions of

the district court.      United States v. Nicholson, 475 F.3d 241,

248 (4th Cir. 2007).

     McNeill argues that he timely filed his § 2255 petition

because he gave it to the prison mailroom staff on May 23, 2011,

four weeks before the statute of limitations ran.              In Houston,

the Supreme Court announced the prison mailbox rule establishing

that a pro se litigant’s legal papers are considered filed upon

“delivery to prison authorities, not receipt by the clerk.”            487

U.S. at 275.      The Court sympathized with the limitations on a

pro se prisoner who is

     [u]nskilled in law, unaided by counsel, [] unable to
     leave the prison, [and whose] control over the
     processing of his notice necessarily ceases as soon as

                                          5
        he hands it over to the only public officials to whom
        he has access -- the prison authorities . . . .

Id.     at    271-72.         The    prison       mailbox       rule    protects       against

potential         mishandling       or    delay     by   prison        staff    and    others,

whether intentional or unintentional.                       Rule 3(d) of the Federal

Rules Governing 28 U.S.C. §§ 2254 and 2255 Cases codified the

rule, as follows:

        Rule 3(d) Inmate Filing. A paper filed by an inmate
        confined in an institution is timely if deposited in
        the institution’s internal mailing system on or before
        the last day for filing. If an institution has a
        system designed for legal mail, the inmate must use
        that system to receive the benefit of this rule.
        Timely filing may be shown by a declaration in
        compliance with 28 U.S.C. § 1746 or by a notarized
        statement, either of which must set forth the date of
        deposit and state that first-class postage has been
        prepaid.

        McNeill’s case presents a matter of first impression for

the Fourth Circuit, but the disposition and reasoning of other

circuits in similar cases is informative.                        In Huizar v. Carey, a

California         state   prisoner         convicted     of     first     degree       murder

stated       he   delivered     a    state    court      habeas    petition       to    prison

mailroom officials on April 15, 1996.                       273 F.3d 1220, 1222 (9th

Cir. 2001).         On June 19, 1996, he wrote to the court to inquire

about    the      petition     but       received   no    reply.         Id.      Twenty-one

months       later,     his    sister       submitted       a    second        copy    of   the

petition.         Id.   Huizar wrote to inquire about his second attempt

at filing the petition, and received a response stating that the



                                                    6
petition had never been received.                  Id.    After Huizar was finally

able to file his state habeas petition, and the state court

denied    it,    he    filed    a   federal    habeas          petition.      Id.     The

district court dismissed the petition as time-barred.                          Id.    The

Ninth    Circuit,      however,     found    that        Huizar    should    “get[]   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.”                          Id. at 1223.       The

court emphasized that it was applying Houston because Huizar had

no   control     of    the     petition     once     it    left     his    hands.     Id.

Ultimately, the court remanded to the district court to make

factual findings regarding whether Huizar actually delivered the

petition to prison mail authorities and whether he was diligent

in his follow-up efforts.              Id. at 1224.               The court concluded

that “[i]f the district court finds that the facts are as Huizar

claims    them    to    be,    it   shall     deem       his    petition    timely    and

consider it on the merits.”           Id.

      The Eleventh Circuit also applied the prison mailbox rule

where the document in question was never filed, but rejected the

Ninth Circuit’s diligence requirement.                      Allen v. Culliver, 471

F.3d 1196 (11th Cir. 2006) (per curiam).                       In Allen, the district

court denied a motion to accept as timely a Notice of Appeal

(“NOA”) from denial of a petition for habeas relief.                          The first

document the district court received arrived one year after it

                                               7
was due and included a claim that petitioner was entitled to the

prison    mailbox          rule    even     though       the    district    court      never

received the NOA that petitioner said he timely delivered to

prison mail staff.            Id. at 1198.           The district court assumed the

document was in fact delivered on time, but, applying Huizar’s

diligence requirement, denied the motion on the basis that the

inmate “failed to act with reasonable diligence in following up

with   court      officials          . . . .”           Id.     The    Eleventh     Circuit

reversed, stating that “[o]nce there has been a finding of fact

that a timely notice of appeal was in fact delivered to the

proper prison authorities (proper postage prepaid) for mailing

to the district court, there is no room, either in Houston or in

Fed.     R.     App.       4(c),      for     the       operation      of   a     diligence

requirement.”          Id.     The court remanded for further fact-finding

regarding whether or not Allen actually delivered the NOA to

prison authorities.            Id.

       Huizar and Allen illustrate the fact-bound nature of the

inquiry       where    a     prisoner       claims      to    have    submitted    a   legal

document to prison mail authorities, but no document arrives or

is filed at the district court.                     While there is discord between

Huizar and Allen on whether to impose a diligence requirement,

both courts remanded for further factual findings as to whether

the legal documents in question were actually delivered to the

prison mail system on time.

                                                    8
     We similarly find that the prison mailbox rule should apply

if McNeill mailed his petition before the end of the applicable

limitations period.     The foundational rationale for the prison

mailbox rule is that a prisoner should not be held accountable

for the handling of his mail where he has no control.            Houston,

487 U.S. at 271.      As the Supreme Court explained, “the pro se

prisoner has no choice but to entrust the forwarding of his

notice of appeal to prison authorities whom he cannot control or

supervise . . . .”    Id.   A litigant not confined to prison would

be able to hand deliver his petition to a clerk of court.          If he

approached the wrong court, he would likely learn of his mistake

upon attempting to submit the petition.          The pro se prisoner

does not have the privilege of shepherding his documents through

a complex legal system.      His lack of control is a deprivation

for which the prison mailbox rule compensates.

     Here, the district court has not made any clear factual

finding that McNeill did, or did not, mail the petition on May

23, 2011.     There is yet no evidence on the record from the

prison’s outgoing mail log that clarifies whether McNeill sent

his petition when he said he did.         McNeill correctly points out

that the court’s sua sponte ruling precluded the government from

conducting   the   straightforward   inquiry   necessary   to   determine

whether there is a time-certain record of McNeill’s mailings.



                                      9
      We   believe    it    was    premature        to     deny   McNeill’s         motion

without first completing this basic factual inquiry.                                McNeill

satisfied his initial burden of proof establishing an exception

to the statute of limitations by submitting a declaration under

§ 1746, rendering him eligible for the prison mailbox rule.                               See

Allen, 471 F.3d at 1198.              The state now bears the burden of

proof to establish that the statute of limitations has run and

that the prison mailbox rule does not apply.                        Ray v. Clements,

700 F.3d 993, 1007 (7th Cir. 2012).

      On   remand,    the    district    court           must   answer     two      narrow

questions.     First, the court must determine whether McNeill sent

his petition on time.        The petitioner’s diligence after a timely

submission of his petition is irrelevant.                       There is nothing in

§ 2255, nor     any   corresponding      rule,       requiring       that      a    pro    se

litigant   diligently       monitor    his     petition         after     it   has    been

submitted.      Nor   did    the   Supreme         Court    require       diligence        in

Houston.        The   district        court        here     should      not        consider

petitioner’s    diligence     in    making         its    factual    determinations.

This inquiry is strictly limited to what transpired before June

21,   2011,    when   the    statute    of     limitations          for    filing         the

petition ended.

      Of course, this case is different than Huizar and Allen

because, unlike the petitioners in those cases, McNeill admits

he addressed his petition to the wrong district court.                             However,

                                              10
upon receiving a wrongfully filed petition in a civil action, a

court “shall, if it is in the interest of justice, transfer such

action or appeal to any other such court in which the action or

appeal could have been brought at the time it was filed or

noticed . . . .”         28 U.S.C. § 1631.        The operation of § 1631 is

essential to the survival of McNeill’s petition.                  Under § 1631,

the receiving court treats the petition as filed when it was

deemed    filed    in   the   sending    court.     As   such,   the   need    for

transfer    does   not    affect   the   timing    principle     of   the   prison

mailbox rule. 1

     However, if McNeill had sent his petition to another errant

location where § 1631 did not mandate transfer, then we could

not find that his petition was timely filed because it never

would    have   arrived    in   the   appropriate    court.      For   instance,

McNeill’s petition would be doomed if it had been sent to and

received by a government office that is not a court as defined

by § 1631 and 28 U.S.C. § 610. 2                The prison mailbox rule and



     1
       The relevant portion of § 1631 explains that “the action
or appeal shall proceed as if it had been filed in or noticed
for the court to which it is transferred on the date upon which
it was actually filed in or noticed for the court from which it
is transferred.” 28 U.S.C. § 1631.
     2
       Section 1631 mandates transfer from “courts,” including
“the courts of appeals and district courts of the United States,
the United States District Court for the District of the Canal
Zone, the District Court of Guam, the District Court of the
Virgin Islands, the United States Court of Federal Claims, and
(Continued)
                                           11
§ 1631 work in tandem in this case:                        The prison mailbox rule

dictates that McNeill’s petition was filed when he relinquished

control to the prison mailroom authorities and § 1631 assures us

that the District Court for the Southern District of Indiana

would have transferred the petition to the proper court.                                As

such,    the    second    question      the   district       court    must    answer    on

remand is whether McNeill did in fact send his petition to the

district court in Indiana, or some other court that falls under

the mandate of § 1631.

     To    clarify,      we     do   not    treat     transfer       under    § 1631    as

mandatory.       See Jones v. Braxton, 392 F.3d 683, 691 (4th Cir.

2004)     (declining     petitioner’s         “invitation       to    impose    on     the

district       courts    a    blanket      policy     of    mandatory    transfer       of

unauthorized successive petitions . . . for consideration as PFA

motions”).        A district court retains discretion to dismiss a

wrongly filed petition if it is frivolous.                      Phillips v. Seiter,

173 F.3d 609, 610-11 (7th Cir. 1999) (explaining that transfer

of   a    frivolous,         time-barred      case    is    a   waste    of    judicial

resources); Galloway Farms, Inc. v. United States, 834 F.2d 998,

1001 (Fed. Cir. 1987) (declining to transfer claims under § 1631

because they were frivolous).                  However, where a petitioner’s



the Court of International Trade.                    28 U.S.C. § 1631; 28 U.S.C.
§ 610.


                                               12
right to the “great writ” is at stake, there are few scenarios

where it would not be in the interest of justice to transfer the

petition to the proper court. 3                     See Ex parte Yerger, 8 Wall.                        85,

95    (1868)          (“The    great     writ       of     habeas        corpus         has    been     for

centuries         esteemed       the     best       and        only   sufficient             defence     of

personal freedom.”).

       We have held before, albeit in an unpublished case, that

transfer under § 1631 for an improperly filed petition is in the

interest         of    justice     where       the        statute       of     limitations           would

otherwise         bar    a     petitioner          from    pursuing          his    habeas          rights.

Shaw       v.    United        States,       417    F.     App’x        311     (4th      Cir.       2011)

(unpublished).               In Shaw, the petitioner attempted to file a 28

U.S.C.          § 2241    petition        in       the         Eastern       District          of    North

Carolina.         Id. at 312.           The district court found that the claims

the    petitioner             submitted       were       properly        raised         in     a    § 2255

petition, but refused to construe the petition as such because

proper      jurisdiction          for    a    § 2255           motion    was       in    the       Northern

District         of    Alabama.         Id.         We     reversed       and      found       that     the

district court should have transferred the petition pursuant to

§ 1631.          Id.     We explained that “[s]uch a transfer would serve

the interest of justice because, if Shaw were now to file a


       3
       The petition in question here is McNeill’s first. Where a
petitioner has filed multiple successive petitions, a court
could find the petition frivolous and dismiss immediately.


                                                          13
§ 2255     motion    in    that   district,        consideration   of    his    claims

likely would be barred by the applicable one-year limitations

period.”     Id.     Additionally, the Seventh Circuit -- which is the

court of appeals for the Southern District of Indiana -- has

explained that a “compelling reason” for transfer exists under

§ 1631 when a mis-addressed, but otherwise timely filed petition

will be time-barred if transfer does not occur.                     Phillips, 173

F.3d at 610.         We have no trouble concluding that the Southern

District of Indiana would have been compelled by this precedent

to   transfer       the    petition    to    the    Eastern   District    of     North

Carolina.

      We    find    that    in    these     circumstances,    transfer       from   the

Southern District of Indiana to the appropriate court in the

Eastern District of North Carolina would be in the interest of

justice.      If     on    remand     the    district   court   makes    a     factual

finding that McNeill did submit his petition to the prison mail

authorities before the statute of limitations ran, and that he

sent it to a court bound by § 1631, then his petition should be

heard on the merits.




                                               14
                                  III.

      For the reasons discussed above, we reverse the decision of

the   district   court   and   remand    for   further   proceedings   in

accordance with the above instructions.

                                                  REVERSED AND REMANDED




                                        15
