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Notice of Appeal – Deadline – Pro Se Prisoner “Mailbox Rule”

State ex rel. Dillard Earl Kelley, 2003 WI App 81

Issue/Holding: The prison mailbox rule of State ex rel. Nichols v. Litscher, 2001 WI 119 (petition for review filed after nominal deadline timely nonetheless if submitted before deadline to prison authorities for mailing by pro se prisoner) extended here to notice of appeal to dismissal of habeas corpus challenging custody; and, rule’s requirement that document be properly addressed satisfied if addressed to branch clerk of Milwaukee court:

¶11. In Wisconsin, trial courts are circuit courts of “general jurisdiction” with the “power to hear and determine, within their respective circuits, all civil and criminal actions and proceedings.” Wis. Stat. § 753.03. Wisconsin Stat. §§ 753.016(1) and (2) provide that in Milwaukee County each branch of the circuit court shall have a deputy clerk provided by the clerk of the circuit court. Reading these statutes in pari materia, we conclude that in Milwaukee County “the clerk of the trial court” contemplated by Wis. Stat. Rule 809.10(1)(a) necessarily encompasses the deputy clerk assigned to the specific branch of the circuit court as well as deputy clerks performing duties within the office of the clerk of circuit court.¶12. In view of this specific statutory scheme governing the location of deputy clerks in each branch of the trial court of Milwaukee County, we conclude that Kelley properly addressed his notice of appeal “to the clerk of the trial court” within the meaning of Wis. Stat. Rule 809.10(1)(a) by specifying its delivery to “Circuit Court Branch 42, Milwaukee Courthouse, Milwaukee, WI 53233.” Because Kelley’s envelope was properly addressed and timely placed in the prison mail prior to the expiration of the ninety-day time limit following the entry of the circuit court’s order on appeal, we hold that the appeal was timely filed within the meaning of Nichols and this court has jurisdiction of it. Accordingly, the State’s motion to dismiss the appeal is denied.

Nothing, interestingly, about “psotage prepaid,” which therefore presumably is not a mailbox-rule requirement. Be cautioned, though, that the federal system takes a different view, Edmund Ingram v. Jones, Nos. 06-2766 & 06-2879, 11/14/07: where prison has a “legal mailing system,” the notice of appeal may be deemed filed when deposited in the system even without prepaid postage. However, “if a prison does not have a legal mailing system, the prisoner is required to show, through a declaration or notarized statement, that his notice was timely filed in order to benefit from the mailbox rule.” Note that, at least as of the date of this opinion, Waupun did not have a separate legal mailing system, so that the inmate’s deposit of mail without prepaid postage failed to trigger the mailbox rule and resulted in an untimely 2254 NOA

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