                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 98-2905
                                   ___________

James Ali Henderson-El,                 *
                                        *
             Appellant,                 *
                                        *
      v.                                * Appeal from the United States District
                                        * Court for the Southern District of Iowa.
Herb Maschner, Warden                   *
                                        *           [PUBLISHED]
             Appellee.                  *
                                   ___________

                             Submitted: April 20, 1999
                             Filed:     June 23, 1999
                                    ___________

Before RICHARD S. ARNOLD and WOLLMAN,1 Circuit Judges, and
      MAGNUSON,2 District Judge.
                              ___________




      1
        The Honorable Roger L. Wollman succeeded the Honorable Pasco M. Bowman
as Chief Judge of the United States Court of Appeals for the Eighth Circuit at the end
of the day on April 23, 1999.
      2
      The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota, sitting by designation.
MAGNUSON, District Judge.

        James Ali Henderson-El appeals from the judgment of the district court3 denying
his Petition for Writ of Habeas Corpus. We affirm.
                                           I.
        Appellant James Ali Henderson-El was tried and convicted in state court for first
degree murder in 1976 and is now serving a life sentence. Appellant subsequently
appealed his conviction to the Iowa Supreme Court, which rejected Appellant’s claims
of trial error and affirmed the conviction. The same counsel represented Appellant
during his trial and his appeal. On August 3, 1979, Appellant filed his first application
for post-conviction relief. There, he claimed that his trial counsel was ineffective for
failing to inform him that he could plead to second degree murder, and that the trial
court erred in its jury instruction which allowed the jury to find specific intent by
inference. His application was denied, and that decision was affirmed by the Iowa
Supreme Court.

       On April 20, 1992, Appellant filed his second application for post-conviction
relief. In this application, he asserted that the jury venire selection process
unconstitutionally excluded minorities. The state district court dismissed this
application because it was filed outside of the three-year limitations period established
by Iowa law.

        Again in May 1994, Appellant filed his third application for post-conviction
relief, raising the following grounds: ineffective assistance of counsel because opening
statements and closing arguments were not reported, and ineffective assistance of
counsel for failing to object to closing arguments. The state district court again
dismissed this application, finding it barred by the three-year statute of limitations.


      3
        The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa.

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       On May 6, 1997, Appellant filed a Petition for Writ of Habeas Corpus in federal
district court. The following claims were raised in the petition: ineffective assistance
of counsel for failing to preserve the issue of prosecutorial misconduct during closing
arguments; ineffective assistance of counsel because previous attorneys did not raise
the issue of prosecutorial misconduct in state court until the claim was time-barred;
denial of a fair trial because the trial court gave a burden-shifting jury instruction; and
denial of a fair trial because the jury venire panel was improperly composed. Although
Appellant's present petition was not filed until May 6, 1997, Appellant signed the
petition on April 20, 1997. Appellant proffered no evidence to show when the petition
was mailed from prison.

      The district court dismissed Appellant’s petition as time-barred based on the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which prescribes a
1-year statute of limitations to applications for writs of habeas corpus.4 The Court held




      4
       Section 2244 provides, in pertinent part:
      (d)(1) A 1-year period of limitation shall apply to an application for a writ
      of habeas corpus . . .. The limitation period shall run from the latest of–
      (A) the date on which the judgment became final by the conclusion of
      direct review or the expiration of the time for seeking such review;
      (B) the date on which the impediment to filing an application created by State
      action in violation of the Constitution or laws of the United States is removed,
      if the applicant was prevented from filing by such State action;
      (C) the date on which the constitutional right asserted was initially recognized
      by the Supreme Court, if the right has been newly recognized by the Supreme
      Court and made retroactively applicable to cases on collateral review; or
      (D) the date on which the factual predicate of the claim or claims presented
      could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244.

                                           -3-
that the statute of limitations began running on December 21, 1981, the date the appeal
from the first post-conviction action became final.5
                                              II.
       This Court is to review the district court’s dismissal of a § 2244 petition de novo.
See Wise v. Bowersox, 136 F.3d 1197, 1201 (8th Cir. 1998). Our recent decision in
Moore v. United States, No. 98-1153, 1999 WL 246875 (8th Cir. Apr. 16, 1999),
allows for a one-year grace period on all § 2255 motions filed by prisoners whose
convictions became final before the enactment of the AEDPA. Thus, we held that April
24, 1997, is the final date for filing such a motion within the one-year grace period. Id.
at * 4. Section 2244's statute of limitation wording is, for all intents and purposes,
identical to that of § 2255. Thus, the one-year grace period may also be applied to
Appellant's habeas petition. However, Appellant's petition was not filed until May
6,1997, twelve days after the grace period expired.

        Appellant seeks protection via the “prison mailbox rule.” Under this rule,
Appellant's § 2244 motion would be deemed filed on the date he placed it in the prison
mail system. See Moore, 1999 WL 246875, at *1. However, Appellant has offered
no evidence as to the date he placed his petition in the mail. The only facts before the
Court are that Appellant signed the petition on April 20, 1997, and the Clerk's office
filed it on May 6, 1997. Neither of these dates aids in determining whether the petition
was mailed on or before April 24. Because Appellant failed to provide any evidence
of the date on which he mailed his petition, he may not avail himself of the benefits of
the prison mailbox rule.

      Additionally, Appellant cites Barke v. Berge, 977 F. Supp. 938 (E.D. Wis.
1997), in support of his argument. In that case, the court held that a petition filed on
May 16, 1997, was timely filed. See id. at 940. However, there, the petitioner had


      5
        The Court held that the subsequent post-conviction claims could not toll the
statute because they were procedurally barred.

                                           -4-
originally filed on April 9, 1997, but failed to pay a filing fee. The court noted that had
the clerk of court notified the petitioner of his error, the petition could have been refiled
within the limitations period. See id. Here, as there was no petition previously filed
within the limitations period, Barke is inapposite. Appellant's petition was not filed
until May 6, 1997, and he has offered no evidence to show it was placed in the mail by
April 24, 1997. Thus, the district court's order dismissing Appellant's petition is
affirmed.

A true copy.

  ATTEST:

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




                                            -5-
