Almein CAIN, Petitioner-Appellant, v. Vincent T. HERBERT, Superintendent, Respondent-Appellee, 129 F. App'x 644

SUMMARY ORDER UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be VACATED and REMANDED for proceedings consistent with this order and this Court’s opinion issued today in Fernandez v. Artuz, 08-2541. Almein Cain appeals from a judgment of the United States District Court for the Eastern District of New York (Block, J.), dismissing as untimely Cain’s petition for a writ of habeas corpus. We assume familiarity as to the facts, the procedural context, and the specification of appellate issues.

This case turns upon whether Cain’s state coram nobis petition is deemed “properly filed” (within the meaning of 28 U.S.C. § 2244(d)) on the date it was delivered to prison authorities for mailing, or on the date it was received by the state court. For the reasons stated in our opinion issued today in Fernandez v. Artuz, 03-2541, we find that the prison mailbox rule applies. It is not altogether clear from the present record what the filing date is when the prison mailbox rule is applied, as Cain’s application for the state writ consisted of documents bearing three different dates.

The record is clear, however, with respect to the date upon which Cain filed his federal habeas petition. This Court also applies the prison mailbox rule to fix the date on which a federal habeas petition is filed. Adeline v. Stinson, 206 F.3d 249, 251 n. 1 (2d Cir.2000) (per curiam) (‘When a prisoner is proceeding pro se ... federal courts generally consider his or her petition for habeas corpus to have been filed as of the date it was given to prison officials for forwarding to the court clerk.”).

Cain’s federal habeas petition was therefore filed on June 26, 2002 (the date Cain delivered his petition to prison officials) rather than on July 3, 2002 (the date the petition was received by the district court). The judgment of the district court is hereby VACATED and REMANDED for proceedings consistent with this order and this Court’s opinion issued today in Fernandez v. Artuz, 03-2541.