from Elmore Circuit Court (CV-18-36)
Return to Remand 
Cook,  an inmate in the custody of the Alabama
Department of Corrections ("the Department") at
Staton Correctional Facility ("the prison"), asks
this Court to reverse the judgment of the Elmore Circuit
Court dismissing his petition for a writ of habeas corpus.
Because Cook failed to timely file his notice of appeal,
however, this Court does not have jurisdiction over
petition challenged his end-of-sentence date and the amount
of credit for time served to which he claims he is entitled.
The circuit court dismissed Cook's petition on March 27,
2018. Under Rule 4(a), Ala. R. App. P., Cook had 42 days to
file a notice of appeal. Ordinarily, a notice of appeal is
considered filed on the date it is received by the
appropriate circuit clerk. Rule 4(a), Ala. R. App. P. But
Cook, as "an inmate confined in an institution and
proceeding pro se," was entitled to the protections
afforded by the "mailbox rule." Rule 4(c), Ala. R.
App. P. Under the mailbox rule, Cook had until May 8, 2018,
the 42d day following the dismissal of his petition, to place
his notice of appeal in the prison's internal mail
system. In the unsworn certificate of service on the notice
of appeal, Cook claimed to have mailed his notice on May 8,
2018. Two handwritten names were listed as witnesses to the
certificate of service: "Grand Shiek Marvin
Franklin" and "A.G.S. Morgan Bertran-al-Bey."
Elmore Circuit clerk did not receive Cook's notice of
appeal until May 25, 2018, and the clerk stamped the notice
as filed on that date. The appeal was forwarded to this
Court, and the Department moved to dismiss the appeal as
having been untimely filed.
4(c), Ala. R. App. P., states that an inmate may show
"[t]imely filing ... by a notarized statement that sets
forth the date the filing was deposited in the
institution's mail system." The Department's
position in its motion to dismiss the appeal is, in essence,
that Rule 4(c) requires a notarized statement of when the
item was placed in the prison's legal mail system. That
position, however, does not reflect the Alabama Supreme
Court's interpretation of Rule 4(c).
Ex parte Wright, 860 So.2d 1253, 1257 (Ala. 2002),
the Alabama Supreme Court held that Rule 4(c) "does not
mandate such a notarized statement as the only way
to establish the timeliness of a filing." Parris v.
Prison Health Servs., Inc., 68 So.3d 108,
110-11 (Ala. Civ. App. 2009) (emphasis added).
"In Ex parte Wright, [860 So.2d 1253 (Ala.
2002)], the Alabama Supreme Court noted that 'the filing
of [Wright's] notice of appeal in the court required no
judicial action' and that the parties did not contest the
timeliness of the notice of appeal before the trial court.
Wright, 860 So.2d at 1257. In reversing the Court of
Criminal Appeals' judgment dismissing Wright's appeal
for untimeliness, the supreme court pointed out that the
Court of Criminal Appeals had been the first court to have
the opportunity to consider the timeliness of Wright's
appeal, and that there had been no evidence before it to
contradict the averments in Wright's 'Declaration of
Mailing,' which, if true, established that his notice of
appeal was timely under the mailbox rule. Therefore, the
supreme court remanded the cause with instructions for the
trial court to determine whether Wright had timely deposited
his notice of appeal in the internal mail system of the
Parris, 68 So.3d at 111.
recognized in Wright, a notarized statement is not
required for a prisoner to be entitled to the protections
afforded by the mailbox rule. However, in the absence of a
notarized statement, the factual assertions in a
prisoner's certificate of service may be disputed, and
the trial court is the appropriate tribunal to resolve such a
factual dispute. See Parris, 68 So.3d at 111. Thus,
in response to the Department's motion to dismiss, this
Court remanded this matter for the circuit court to determine
whether Cook's notice of appeal had been timely filed.
See note 1, supra.
remand, the circuit court held a hearing at which Cook and
Pamela Sage, the mail clerk for the prison, testified. Cook
testified that he placed the petition in the prison's
legal mail system on May 8, 2018, the date indicated in the
certificate of service in his petition.
circuit court's order on remand summarizes Sage's
testimony as well as the contents of a spreadsheet the
Department introduced into evidence. The spreadsheet, a log
documenting the processing of inmates' legal mail,
indicates the name of the inmate sending mail, the addressee,
and the date the mail was processed. The spreadsheet
indicates that Cook sent only two items through the
prison's legal mail system between May 1, 2018, and May
22, 2018. Only one of those items was mailed from Cook to the
Elmore Circuit clerk, and the spreadsheet indicates that it
was processed on Tuesday, May 22, 2018.
testified that the contents of the prison's legal mailbox
are processed each Tuesday and Thursday. Sage stated that if
an inmate had deposited mail in the prison's legal
mailbox after pickup time, that mail would not get processed
until the next pickup day. Thus, according to Sage, Thursday,
May 17, 2018, was the earliest that ...