                    United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT

___________

No. 97-3639
___________

Michael Nichols,                       *
                                       *
            Appellant,                 *
                                       *
      v.                               *
                                       *
Michael Bowersox; Jeremiah (Jay)       *
Nixon, Attorney General of the State   *
of Missouri,                               *
                                       *
            Appellees.                 *

____________                               Appeals from the United States
                                           District Court for the
No. 97-3640                                Western District of Missouri
____________

Richard L. Crane,                      *
                                       *
            Appellant,                 *
                                       *
      v.                               *
                                       *
Dave Dormire, Superintendent;          *
Jeremiah (Jay) Nixon, Attorney         *
General, State of MO,                  *
                                       *
            Appellees.                 *
                                    ___________

                              Submitted: September 23, 1998

                                   Filed: April 13, 1999
                                    ___________

Before BOWMAN, Chief Judge, and McMILLIAN, RICHARD S. ARNOLD, FAGG,
WOLLMAN, BEAM, LOKEN, HANSEN, MORRIS SHEPPARD ARNOLD,
MURPHY and KELLY,1 Circuit Judges, En Banc.
                              ___________

McMILLIAN, Circuit Judge.

       In these consolidated cases, Michael Nichols and Richard L. Crane (together
referred to as “petitioners”) appeal from final judgments entered in the United States
District Court for the Western District of Missouri dismissing their respective
petitions for writs of habeas corpus filed pursuant to 28 U.S.C. § 2254. Nichols v.
Bowersox, No. 97-0666-CV-W-3-P (W.D. Mo. Aug. 20, 1997); Crane v. Dormire,
No. 97-0673-CV-W-3-P (W.D. Mo. Aug. 20, 1997). For reversal, they argue that the
district court erred in dismissing their petitions as untimely filed under the one-year
period of limitation imposed by 28 U.S.C. § 2244(d), which was enacted as part of
the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). In an earlier
proceeding, a divided panel of this court reversed the judgments of the district court
and remanded each case to the district court for further proceedings. However, this
court subsequently vacated the panel opinion and granted the suggestion for rehearing
en banc filed by Michael Bowersox and Dave Dormire (together referred to as
“respondents”). Upon consideration by the full court and for the reasons stated



      1
       The Honorable John D. Kelly passed away on October 21, 1998. This opinion
is consistent with his vote at the en banc conference following oral argument on
September 23, 1998.

                                         -2-
below, we reverse the judgments of the district court and remand for further
proceedings consistent with this opinion.

       Jurisdiction in the district court was based upon 28 U.S.C. §§ 1331, 2254.
Jurisdiction in this court is based upon 28 U.S.C. §§ 1291, 2253(a).

                                    Background

Nichols v. Bowersox

       Petitioner Nichols is currently serving, among other sentences, a sentence of
life imprisonment without the possibility of parole for first degree murder. He was
convicted of first degree murder in the Circuit Court of Jackson County, Missouri,
and his conviction was affirmed on appeal by the Missouri Court of Appeals on
February 20, 1996. State v. Nichols, 915 S.W.2d 795 (Mo. Ct. App. 1996) (per
curiam). Nichols did not file a petition for a writ of certiorari in the United States
Supreme Court. The mandate in his criminal case issued on April 11, 1996.

       Nichols, acting pro se, filed his § 2254 petition for a writ of habeas corpus
through the prison mail system. He signed the petition on April 21, 1997. It was
“provisionally filed” by the district court clerk’s office on April 28, 1997. On
May 30, 1997, the district court dismissed Nichols’ petition for failure to correct
technical defects. On June 16, 1997, the district court reopened the case, denied
Nichols leave to proceed in forma pauperis, and ordered him to pay the filing fee.
Nichols paid the filing fee, which was received by the district court on July 15, 1997.
In the meantime, respondent Bowersox moved to dismiss the petition as untimely
filed under 28 U.S.C. § 2244(d). On August 19, 1997, the district court granted
Bowersox’s motion to dismiss. The district court issued a certificate of appealability
on the question of “whether the prison mailbox rule announced in Houston v. Lacks,



                                         -3-
487 U.S. 266 (1988), should now apply to the filing of habeas corpus petitions.”2
Nichols appealed.

Crane v. Dormire

       Petitioner Crane was convicted on December 3, 1992, in the Circuit Court of
Jasper County, Missouri, of second degree burglary and stealing and was sentenced
to prison terms of twenty years and one year, respectively. The Missouri Court of
Appeals affirmed his conviction on June 28, 1994. The mandate in his criminal case
issued on July 14, 1994.

      Crane, acting pro se, filed his § 2254 petition for a writ of habeas corpus
through the prison mail system. He signed the petition on April 20, 1997. It was
“provisionally filed” by the district court clerk’s office on April 29, 1997. On June
30, 1997, the district court granted Crane leave to proceed in forma pauperis. On
July 14, 1997, respondent Dormire moved to dismiss Crane’s petition as untimely


      2
        We note that, when this case was originally argued before the panel,
respondents disputed jurisdiction in the court of appeals on the ground that petitioners
had failed to make a substantial showing of a denial of a constitutional right, as
required under 28 U.S.C. § 2253(c)(2), and therefore the certificate of appealability
was improvidently granted. Although respondents did not reassert that argument
when this case was reheard by our court en banc, we believe that the jurisdictional
question warrants some discussion. Upon careful consideration, we conclude that
§ 2253(c)(2) does not preclude us from exercising jurisdiction in the present case.
We do not think § 2253(c) is intended to preclude all review of preliminary
procedural issues, such as the limitations question now before us. We read § 2253(c)
as addressing only the sort of showing required for a petitioner to obtain appellate
review of the merits of his or her claims for habeas corpus or § 2255 relief.
Otherwise, a final order entered by a district court based upon a question antecedent
to the merits, if adverse to the petitioner, could never be reviewed on appeal. While
we assume Congress has the power to establish such a regime, we do not think it
intended to do so when it enacted the AEDPA.

                                          -4-
filed under 28 U.S.C. § 2244(d). The district court granted Dormire’s motion to
dismiss on August 19, 1997. The district court issued a certificate of appealability
on the question of “whether the prison mailbox rule announced in Houston v. Lacks,
487 U.S. 266 (1988), should now apply to the filing of habeas corpus petitions.”
Crane appealed.

                                     Discussion

Section 2244(d)

       On April 24, 1996, a one-year period of limitation for filing habeas petitions
went into effect as part of the AEDPA. 28 U.S.C. § 2244(d). The statute provides:

         (1) A 1-year period of limitation shall apply to an application for a
      writ of habeas corpus by a person in custody pursuant to the judgment
      of a State court. 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.

                                         -5-
         (2) The time during which a properly filed application for State post-
      conviction or other collateral review with respect to the pertinent
      judgment or claim is pending shall not be counted toward any period of
      limitation under this subsection.


28 U.S.C. § 2244(d). Prior to the 1996 enactment of the AEDPA, no statutory period
of limitation was imposed for filing habeas petitions in federal court pursuant to
§ 2254.3

Determination of triggering date under § 2244(d)(1)(A)

       The one-year limitation period imposed by 28 U.S.C. § 2244(d)(1) begins to
run on the latest of several possible triggering dates. For both Nichols and Crane, the
relevant triggering date is that which is described in § 2244(d)(1)(A) as “the date on
which the judgment became final by the conclusion of direct review or the expiration
of the time for seeking such review.” In Smith v. Bowersox, 159 F.3d 345, 348 (8th


      3
        Prior to the 1996 enactment of the AEDPA, the time available to file a § 2254
petition was not entirely without limitation, however. Such petitions were subject to
traditional equitable doctrines such as laches, as well as the following rule adopted
in 1976.

      A petition may be dismissed if it appears that the state of which the
      respondent is an officer has been prejudiced in its ability to respond to
      the petition by delay in its filing unless the petitioner shows that it is
      based on grounds of which he could not have had knowledge by the
      exercise of reasonable diligence before the circumstances prejudicial to
      the state occurred.

Rules Governing Section 2254 Cases, Rule 9(a); see also id. advisory committee’s
notes.



                                         -6-
Cir. 1998), cert. denied, 119 S. Ct. 1133 (1999), § 2244(d)(1)(A) was interpreted by
a panel of this court as follows:

      the running of the statute of limitations imposed by § 2244(d)(1)(A) is
      triggered by either (i) the conclusion of all direct criminal appeals in the
      state system, followed by either the completion or denial of certiorari
      proceedings before the United States Supreme Court; or (ii) if certiorari
      was not sought, then by the conclusion of all direct criminal appeals in
      the state system followed by the expiration of the time allotted for filing
      a petition for the writ.


       The Smith decision was filed one month after the present case was argued and
submitted to the court en banc. Now, in light of Smith, we will consider the dates on
which Nichols’ and Crane’s respective state court judgments became final within the
meaning of § 2244(d)(1)(A). The record in this case indicates that neither Nichols
nor Crane filed a petition for a writ of certiorari in the United States Supreme Court.
See Respondents’ Appendix at 1, 52. According to Smith, the dates on which the
judgments became final within the meaning of § 2244(d)(1)(A) are therefore
determined by “the conclusion of all direct criminal appeals in the state system
followed by the expiration of the time allotted for filing a petition for the writ [of
certiorari].” Id. Thus, each petitioner’s state court judgment became final under
§ 2244(d)(1)(A) upon the expiration of his time to file a petition for a writ of
certiorari.

      Rule 13 of the Supreme Court Rules provides in relevant part:

             Unless otherwise provided by law, a petition for a writ of
      certiorari to review a judgment in any case, civil or criminal, entered by
      a state court of last resort or a United States court of appeals . . . is
      timely when it is filed with the Clerk of this Court within 90 days after
      entry of the judgment. A petition for a writ of certiorari seeking review
      of a judgment of a lower state court that is subject to discretionary

                                          -7-
      review by the state court of last resort is timely when it is filed with the
      Clerk within 90 days after entry of the order denying discretionary
      review.


       Based upon the information contained in the record, and taking into account
Smith and Supreme Court Rule 13, we can say with certainty that Nichols’ judgment
became final within the meaning of § 2244(d)(1)(A) no earlier than May 20, 1996,
exactly 90 days after his conviction was affirmed on direct appeal. Accordingly,
Nichols had at least until midnight on May 19, 1997, in which to file his petition for
a writ of habeas corpus under the terms of 28 U.S.C. § 2244(d)(1)(A). See Smith, 159
F.3d at 348 (Supreme Court’s denial of plea for writ of certiorari on November 3,
1997, began running of statute of limitations, meaning petitioner had until midnight
on November 2, 1998, to petition for habeas corpus relief in federal court). Crane,
on the other hand, was convicted in state trial court in 1992. His conviction was
affirmed by the state court of appeals on June 28, 1994, and the mandate in his
criminal case issued on July 14, 1994. Therefore, we can say with certainty that his
judgment became final within the meaning of § 2244(d)(1)(A) well before the
AEDPA became effective on April 24, 1996.

Grace period rule

       Believing that the state court judgment against each petitioner became final
prior to the effective date of the AEDPA, the district court assumed for purposes of
applying § 2244(d)(1)(A) that each of them had one year after the effective date of
the AEDPA in which to file his habeas petition. In other words, the district court
adopted a one-year grace period for the filing of habeas petitions in all cases where
the state court judgment became final before April 24, 1996. As explained above, it
now turns out that Nichols’ state court judgment did not become final before the
effective date of the AEDPA. Thus, the question of whether or not a one-year grace
period should apply is now moot with respect to him. However, the grace period rule

                                          -8-
remains a relevant issue in Crane’s case because, as noted above, the judgment in his
state criminal case became final prior to April 24, 1996. Upon careful en banc
review, we now hold that the district court did not err in applying a one-year grace
period for the filing of Crane’s habeas corpus petition.


      When application of a new limitation period would wholly eliminate
      claims for substantive rights or remedial actions considered timely under
      the old law, the application is impermissibly retroactive. The legislature
      cannot extinguish an existing cause of action by enacting a new
      limitation period without first providing a reasonable time after the
      effective date of the new limitation period in which to initiate the action.
      Indeed, the Supreme Court has stated that newly-enacted statutes of
      limitations must allow a reasonable time after they take effect for the
      commencement of suits upon existing causes of action.


Brown v. Angelone, 150 F.3d 370, 373 (4th Cir. 1998) (Angelone) (citations and
internal quotation marks omitted). In our opinion, a reasonable time after the
effective date of the AEDPA for allowing suits to commence upon pre-existing
causes of action is one year. Accord id. (holding that the “reasonable time” required
and the one-year statutory period “coalesce”) (quoting Lindh v. Murphy, 96 F.3d 856,
866 (7th Cir. 1996) (en banc), rev’d on other grounds, 521 U.S. 320 (1997)); United
States v. Flores, 135 F.3d 1000, 1002-06 (5th Cir. 1998) (holding that one year is
“reasonable period” for purposes of § 2255 grace period), cert. denied, 119 S. Ct. 846
(1999). The courts of appeals which have addressed this issue have agreed with the
application of a one-year grace period, although they have been divided on the
question of whether the grace period ends on April 23, 1997, or April 24, 1997.
Compare, e.g., Flanagan v. Johnson, 154 F.3d 196, 200-02 (5th Cir. 1998) (applying
April 24 deadline); Ross v. Artuz, 150 F.3d 97, 99-103 (2d Cir. 1998) (applying April
24 deadline and clarifying Peterson v. Demskie, 107 F.3d 92 (2d Cir. 1997)), with
Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998) (applying April 23 deadline);
Calderon v. United States District Court, 128 F.3d 1283, 1287 (9th Cir. 1997)

                                          -9-
(applying April 23 deadline), cert. denied, 118 S. Ct. 899 (1998); United States v.
Simmonds, 111 F.3d 737, 746 (10th Cir. 1997) (applying April 23 deadline); Lindh
v. Murphy, 96 F.3d at 866 (applying April 23 deadline). In order to dispose of the
issues in Crane’s appeal, it is not necessary for us to decide whether the grace period
ended precisely on April 23, 1997, or April 24, 1997. Accordingly, we hold that a
one-year filing grace period, beginning on April 24, 1996, shall apply for habeas
petitions where the relevant triggering date under 28 U.S.C. § 2244(d)(1) precedes
April 24, 1996 (but we leave for another day the April 23-versus-April 24 deadline
issue).

Prison mailbox rule

        We now turn to the more difficult issue presented by these appeals: whether or
not the petitions were timely filed – that is, whether they were “filed” within the
meaning of 28 U.S.C. § 2244(d) on or before the applicable deadlines.
Uncontradicted evidence in the record indicates that petitioners deposited their
petitions in their respective prison mail systems on the same day that they signed their
petitions. Assuming that to be true for purposes of respondents’ motions to dismiss,
Nichols and Crane would have deposited their petitions in the prison mail systems on
April 21 and April 20, 1997, respectively. Based upon the dates on which their
petitions were “provisionally filed,” the district court clerk’s office presumably
received Nichols’ and Crane’s petitions on April 28 and April 29, 1997, respectively.
Moreover, after being denied leave to proceed in forma pauperis, Nichols did not pay
his filing fee until July 15, 1997. Crane obtained leave to proceed in forma pauperis
on June 30, 1997. Our determination of whether Nichols and Crane timely filed their
petitions under § 2244(d) therefore depends on whether, for purposes of that statutory
provision, a petition is deemed filed on the date it is deposited in the prison mail
system, the date it is received by the district court clerk’s office, or the date of some
other event such as the payment of the filing fee or the district court’s granting of
leave to proceed in forma pauperis.

                                          -10-
       Petitioners have urged this court to apply the “prison mailbox rule” which, as
the name suggests, would establish the date of filing as the date on which the prisoner
puts the proverbial “letter” in the proverbial “mailbox” – in other words, the date on
which he or she deposits the petition in the prison mail system. The prison mailbox
rule traditionally and appropriately applies only to pro se inmates who may have no
means to file legal documents except through the prison mail system.               That
requirement is no impediment to the application of the prison mailbox rule in this
case because each petitioner filed his habeas petition pro se.

       In Houston v. Lack, 487 U.S. 266 (1988), the Supreme Court applied the prison
mailbox rule to a notice of appeal from a federal district court’s judgment denying
habeas relief. The Supreme Court held that a pro se prisoner’s notice of appeal is
“filed,” for purposes of the applicable filing deadline, at the moment of delivery to
prison authorities for forwarding to the district court.4 In the cases at bar, however,
the district court reluctantly concluded that it could not apply the prison mailbox rule
to petitioners’ habeas filings in light of our pre-AEDPA decision in Allen v. Dowd,
964 F.2d 745, 746 (8th Cir. 1992). In Allen v. Dowd, the petitioner sought to bring
a § 2254 habeas action in 1990, to challenge his 1982 conviction. After waiting some
eight years after the conviction, and with only five days of the relevant sentence
remaining, he placed his pro se habeas petition in the prison mail system. The
petition was not received by the district court until after the sentence had been
completed. On appeal, a panel of this court rejected the petitioner’s argument that the
prison mailbox rule should be applied to preserve the timeliness of the filing. This
court held that the petition was filed on the date it was received by the district court
and the petitioner was therefore not “in custody” on the relevant sentence at the time

      4
        In 1993, five years after the Supreme Court’s decision in Houston v. Lack, 487
U.S. 266 (1988), Rule 4 of the Federal Rules of Appellate Procedure was amended
by the addition of subsection (c), substantially codifying the rule of Houston v. Lack.
Now, as a result of a 1998 amendment, a more detailed version of the rule is
contained in Rule 4(c)(1) of the Federal Rules of Appellate Procedure.

                                         -11-
his § 2254 petition was filed. In rejecting the petitioner’s invitation to extend the
holding in Houston v. Lack to the case before it, this court reasoned: “Lack is limited
to notices of appeal, which have a 30-day deadline under 28 U.S.C. § 2107(a) and
Fed. R. App. P. 4(a)(1). This case does not concern a notice of appeal or other filing
with a 30-day deadline.” Allen v. Dowd, 964 F.2d at 746 (citations omitted). The
panel then continued: “Moreover, this court has recently held that filing does not
occur in a habeas case until the petitioner has either paid the filing fee or been granted
leave to proceed in forma pauperis.” Id. (citing Weaver v. Pung, 925 F.2d 1097, 1099
(8th Cir.), cert. denied, 502 U.S. 828 (1991)).

       We granted the suggestion for rehearing en banc in the present case in part to
address the meaning and vitality of Allen v. Dowd following the enactment of the
AEDPA. Under this new regime, we now hold that Allen v. Dowd is no longer viable
to the extent that it may be read as inconsistent with the application of the prison
mailbox rule to a habeas petition filing that is governed by 28 U.S.C. § 2244(d).

       The Supreme Court’s rationale in Houston v. Lack, explaining the extension
of the prison mailbox rule to the 30-day deadline for filing notices of appeal in habeas
cases, is most instructive in the present context. In Houston v. Lack, the Supreme
Court reasoned:

             The situation of prisoners seeking to appeal without the aid of
      counsel is unique. . . . Other litigants may choose to entrust their appeals
      to the vagaries of the mail and the clerk’s process for stamping incoming
      papers, but only the pro se prisoner is forced to do so by his situation.
      . . . Worse, 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 and who may have every incentive to delay. No
      matter how far in advance the pro se prisoner delivers his notice to the
      prison authorities, he can never be sure that it will ultimately get
      stamped “filed” on time. And if there is a delay the prisoner suspects is
      attributable to the prison authorities, he is unlikely to have any means of

                                          -12-
      proving it, for his confinement prevents him from monitoring the
      process sufficiently to distinguish delay on the part of prison authorities
      from slow mail service or the court clerk’s failure to stamp the notice on
      the date received. Unskilled in law, unaided by counsel, and unable to
      leave the prison, his control over the processing of his notice necessarily
      ceases as soon as he hands it over to the only public officials to whom
      he has access – the prison authorities – and the only information he will
      likely have is the date he delivered the notice to those prison authorities
      and the date ultimately stamped on his notice.

487 U.S. at 270-72.

       In discussing the policy grounds for the application of the prison mailbox rule
in that case, the Supreme Court observed:

             The 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. Relying on the date of receipt, by contrast, raises such
      difficult to resolve questions as whether delays by the United States
      Postal Service constituted excusable neglect and whether a notice
      stamped “filed” on one date was actually received earlier.


Id. at 275 (footnote omitted). In the prison context, the Supreme Court went on to
observe, the policy arguments favoring the mailbox rule are all the more compelling
because if, for example, a dispute should arise over whether the prison was dilatory,

      [t]he prison will be the only party with access to at least some of the
      evidence needed to resolve such questions – one of the vices the general


                                         -13-
      rule is meant to avoid – and evidence on any of these issues will be hard
      to come by for the prisoner confined to his cell, who can usually only
      guess whether the prison authorities, the Postal Service, or the court
      clerk is to blame for any delay.


Id. at 276.

        Because we now have a one-year limitation period for filing habeas petitions,
whereas before the enactment of the AEDPA there was no statutory limitation period
at all, we believe that the Supreme Court’s reasoning in Houston v. Lack applies with
virtually equal force to the issue presently before us.

       Respondents nevertheless maintain that application of the “prison mailbox
rule” to petitioners’ § 2254 pro se petitions would directly conflict with Rule 3 of the
Rules Governing Section 2254 Cases, which were promulgated by the Supreme Court
and approved by Congress in 1976. Respondents argue that Rule 3 is not merely
procedural but, in fact, defines what is required for a habeas petition to be deemed
“filed.” They highlight the language in Rule 3(a) that a § 2254 petition “shall be filed
in the office of the clerk of the district court” and the language in Rule 3(b) stating
that the clerk of the district court “shall file the petition” and enter it on the court’s
docket “[u]pon receipt of the petition and the filing fee, or an order granting leave to
the petitioner to proceed in forma pauperis, and having ascertained that the petition
appears on its face to comply with rules 2 and 3 [of the Rules Governing Section
2254 Cases].” Respondents therefore conclude that a prisoner’s pro se habeas
petition is not filed, for purposes of applying 28 U.S.C. § 2244(d), until the clerk of
the district court has received the petition, has received the filing fee or an order
granting leave to proceed in forma pauperis, and has ascertained that the petition
appears on its face to comply with Rules 2 and 3 of the Rules Governing Section
2254 Cases. In support of this argument, respondents also emphasize the facts that



                                          -14-
Congress did not amend Rule 3 at the time it enacted the AEDPA in 1996 nor has
Congress amended Rule 3 in the few years since then.

       We disagree with respondents’ construction of Rule 3 of the Rules Governing
Section 2254 Cases. We note that a similar question of interpretation was addressed
by the Supreme Court in Houston v. Lack, 487 U.S. at 272-73, when the Court
considered whether the prison mailbox rule could be applied to the filing of a pro se
prisoner’s notice of appeal consistent with Rule 3(a) of the Federal Rules of Appellate
Procedure (“[a]n appeal permitted by law as of right from a district court to a court
of appeals shall be taken by filing a notice of appeal with the clerk of the district court
within the time allowed by Rule 4”) and Rule 4(a)(1) of the Federal Rules of
Appellate Procedure (“the notice of appeal required by Rule 3 shall be filed with the
clerk of the district court within 30 days after the date of entry of judgment or order
appealed from”). Notably, the Supreme Court concluded that those rules of appellate
procedure were not an obstacle to the application of the prison mailbox rule. The
Supreme Court explained:

              Rules 3(a) and 4(a)(1) . . . specify that the notice should be filed
       “with the clerk of the district court.” There is, however, no dispute here
       that the notice must be directed to the clerk of the district court –
       delivery of a notice of appeal to prison authorities would not under any
       theory constitute a “filing” unless the notice were delivered for
       forwarding to the district court. The question is one of timing, not
       destination: whether the moment of “filing” occurs when the notice is
       delivered to the prison authorities or at some later juncture in its
       processing. [Rules 3(a) and 4(a)(1)] are not dispositive on this point, for
       neither Rule sets forth criteria for determining the moment at which the
       “filing” has occurred.


Id. at 272-73 (citing Fallen v. United States, 378 U.S. 139, 144 (1964) (Stewart, J.,
joined by Clark, Harlan, and Brennan, JJ., concurring) (concluding that the mailbox


                                           -15-
rule should apply to pro se prisoner’s filing of notice of appeal from judgment of
conviction, under former Rule 37(a) of the Federal Rules of Criminal Procedure,
which is now substantially contained in Rule 4(b) of the Federal Rules of Appellate
Procedure)).

        Similarly, we hold that Rule 3 of the Rules Governing Section 2254 Cases is
not dispositive in the present case. As noted above, Rule 3(a) instructs the habeas
petitioner that the petition “shall be filed in the office of the clerk of the district
court”; Rule 3(b) further instructs the clerk of the district court to file the petition
“[u]pon receipt of the petition and the filing fee, or an order granting leave to the
petitioner to proceed in forma pauperis, and having ascertained that the petition
appears on its face to comply with rules 2 and 3.” These rules therefore tell the
petitioner where to send the petition and tell the clerk’s office how to process the
petition once received. They do not, however, address the question now before us,
which is whether, for purposes of applying the one-year period of limitation imposed
by § 2244(d), the moment of filing occurs when the petition is delivered to the prison
authorities or upon some later event. The Rules Governing Section 2254 Cases are
not dispositive on this particular question because neither Rule 3(a) nor Rule 3(b) was
ever intended by Congress to set forth the criteria for determining when that moment
of filing has occurred. Indeed, at the time Rule 3 was adopted, no statutory limitation
period for § 2254 habeas petitions existed. Therefore, it would be illogical to assume
that Congress intended at that time for Rule 3 to set forth criteria for determining
when a petition would be deemed “filed” for purposes of applying a statutory
limitation period.

      Moreover, the mere fact that Congress has not amended Rule 3 to specifically
incorporate the prison mailbox rule for the filing of habeas petitions – as Congress
so amended Rule 4(c) of the Federal Rules of Appellate Procedure five years after the
Supreme Court’s ruling in Houston v. Lack – also is not dispositive. If Congress did
not originally intend for Rule 3 to set forth the criteria for determining when a

                                         -16-
petition would be deemed “filed” for purposes of applying a statutory limitation
period, it certainly cannot be inferred that Congress intended to preserve any such
criteria simply because Congress failed to amend Rule 3. Nor is there any evidence
in the legislative history or elsewhere to suggest that, at the time the AEDPA was
enacted, Congress intended that henceforth Rule 3 would have the legislative effect
of setting forth the criteria for determining the moment at which a petition is to be
deemed filed for purposes of applying the newly enacted one-year limitation period.



       In sum, we hold that, for purposes of applying 28 U.S.C. § 2244(d), a pro se
prisoner’s petition for a writ of habeas corpus is filed on the date it is delivered to
prison authorities for mailing to the clerk of the court.5 Accordingly, Nichols and
Crane each timely filed his § 2254 petition for habeas corpus relief in the district
court.

                                     Conclusion

       For the reasons set forth above, we reverse the judgments of the district court
dismissing the petitions as untimely filed. These consolidated cases are remanded to
the district court for further proceedings consistent with this opinion.



BEAM, Circuit Judge, dissenting.


      5
        For the sake of consistency, we adopt the same requirements for this type of
filing by a pro se inmate as applies to notices of appeal pursuant to Rule 4(c)(1) of
the Federal Rules of Appellate Procedure. Accordingly, a pro se inmate’s § 2254
petition is timely filed “if it is deposited in the institution’s internal mail system on
or before the last day for filing”; moreover, “[i]f an institution has a system designed
for legal mail, the inmate must use that system to receive the benefit of this rule.” See
Fed. R. App. P. 4(c)(1) (effective Dec. 1, 1998).

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       I believe this court has no jurisdiction to decide the issues considered in this
matter. The applicants have failed to make the substantial showing of a denial of a
constitutional right as required by 28 U.S.C. § 2253(c)(2). Thus, the certificates of
appealability issued by the district court were improvidently granted. As noted in
footnote 2 of its opinion, supra at 4, the court simply rewrites section 2253(c)(2),
contending that Congress could not have "intended to" say what it very clearly says
and had full authority to say. With this approach, I disagree.

      If I were to reach the merits, I would affirm. In this case, we deal with facts,
rules and policies far different than those considered by the Supreme Court in
Houston v. Lack, 487 U.S. 266 (1988). Accordingly, I would affirm this case upon
the well-reasoned opinion of the district court.



MORRIS SHEPPARD ARNOLD, Circuit Judge, dissenting.

       I respectfully dissent. The statute under which the court purports to exercise
jurisdiction in these cases provides that no appeal can be taken from a "final order"
in a habeas case unless "the applicant has made a substantial showing of the denial
of a constitutional right." See 28 U.S.C. § 2253(c)(2); see also 28 U.S.C.
§ 2253(c)(1)(B). It is indisputable and undisputed that the district court has entered
a "final order" in these cases and that the applicants have not "made a substantial
showing of a denial of a constitutional right."

       Despite the plain wording of the statute, the court proceeds to decide these
cases in the professed belief, for reasons that it does not disclose, that Congress could
not have intended to foreclose appeals when a district court entered a final order in
a habeas case on a question antecedent to the merits. I have no similar difficulty with
the statute: The whole point of the AEDPA and the PLRA was to reduce the
incidence of prisoner litigation in federal courts because of widespread public

                                          -18-
dissatisfaction with the criminal justice system. Since the statute's objective is
advanced by reducing the number of appeals in habeas cases, there is no reason to
wonder why Congress would want to do that. More importantly, ours is not to
wonder why: The statute rather plainly forecloses the appeal, and we ought simply
to read its words and apply them.

       There is, moreover, a construction of the statute that would allow a habeas
petitioner an appeal even if the final order in his or her case is entered on a matter
preliminary to the merits. A requirement that the prisoner make some kind of
abbreviated showing on the merits (perhaps in an appropriate case accompanied by
an offer of proof) before he or she can take an appeal, even on a matter unconnected
with the merits, is a perfectly rational (if rather cumbersome) one. The court does not
even consider this possible construction of the statute and proceeds to judgment in
the face of what seems to me to be an unmistakable jurisdictional barrier.

      I would therefore dismiss these cases for lack of jurisdiction.



      A true copy.

             Attest:

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




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