     Case: 11-40750       Document: 00512152681         Page: 1     Date Filed: 02/22/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         February 22, 2013
                                     No. 11-40750
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA ,

                                                  Plaintiff-Appellee

v.

RANSOM NYAMAHARO,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                              USDC No. 4:11-CV-260
                             USDC No. 4:08-CR-165-1


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       In 2009, Ransom Nyamaharo, federal prisoner # 15372-078, was convicted
of conspiracy to commit identity theft and bank fraud, and of conspiracy to
defraud the United States. See United States v. Nyamaharo, 364 F. App’x 899
(5th Cir.), cert. denied, 130 S. Ct. 2394 (2010). The district court dismissed
Nyamaharo’s 28 U.S.C. § 2255 motion as untimely.                      This court granted
Nyamaharo a certificate of appealability (COA) on the issue whether, under


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 11-40750

Stoot v. Cain, 570 F.3d 669, 671 (5th Cir. 2009), his § 2255 motion should have
been deemed filed on the day he purportedly submitted a prior § 2255 motion to
prison officials for mailing even though the prior motion was never filed, and if
so, whether the district court erred in rejecting his contention that he placed the
prior § 2255 motion in the prison mailing system on the date he alleged. We
review the district court’s factual findings for clear error. See United States v.
Plascencia, 537 F.3d 385, 388 (5th Cir. 2008). The court’s judgment may be
affirmed on any basis supported by the record. See Scott v. Johnson, 227 F.3d
260, 262 (5th Cir. 2000).
      Under the mailbox rule, pro se prisoner filings are deemed filed as soon as
they are deposited into the prison mail system. See Medley v. Thaler, 660 F.3d
833, 835 (5th Cir. 2011) (citing Houston v. Lack, 487 U.S. 266 (1988)).
             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.

RULE 3(d) OF THE RULES GOVERNING SECTION 2255 PROCEEDINGS IN THE UNITED
STATES DISTRICT COURTS. When a litigant has certified under penalty of perjury
that his petition was deposited in the prison mailing system on a certain date,
the petition is deemed filed on that date. See, e.g., Windland v. Quarterman, 578
F.3d 314, 318 (5th Cir. 2009)(§ 2254 case).
      In Stoot, 570 F.3d at 672, this court held that under the federal “mailbox
rule,” the state pleading would be deemed filed on the date that it was submitted
to prison authorities to be mailed “regardless of whether the pleading actually
reache[d] the court.” This court cautioned that, “Under such a rule, it is of
course incumbent upon the petitioner to diligently pursue his petition. A failure



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                                  No. 11-40750

to inquire about a lost petition is strong evidence that the petition was, in fact,
never sent.” Id.
      We reject Nyamaharo’s contention that the holding in Stoot applies to the
facts of the instant case to render his § 2255 motion timely. Although the court
in Stoot indicated that, as a general matter, the mailbox rule could be extended
in situations where the prisoner could prove an attempted earlier mailing even
though the pleading was never filed or received, the court did not address the
level of proof required to support such a finding. See Stoot, 570 F.3d at 671-72.
Instead, the court remanded the case so that the district court could make such
a determination. Id. at 672. Further, in Stoot, the court specifically noted that
there was no reason to believe that the mailbox rule was being “abused or
manipulated.” Id. at 671. In the instant case, however, and as noted by the
district court, Nyamaharo gave absolutely no indication that he had attempted
to file an earlier motion when initially asked to address the timeliness issue. It
was not until the magistrate judge set forth the correct date of the finality of his
conviction that Nyamaharo first asserted that he had actually filed an earlier
motion that would have been timely. Although Nyamaharo submitted two
declarations “under penalty of perjury” in which he attested to the earlier filing,
the declarations were submitted only after the magistrate judge explained why
the instant motion was untimely. Additionally, Nyamaharo’s sworn declarations
that he filed the earlier motion contradicts his earlier declarations that the later
filing was his only such motion. In light of the foregoing, Nyamaharo has failed
to demonstrate reversible error in the district court’s determination that his
motion was untimely. We do not consider the affidavit that Nayamaharo has
appended to his appellate brief, as it is not properly before this court. See United
States v. Flores, 887 F.2d 543, 546 (5th Cir. 1989).
      AFFIRMED.




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