author: Justice Kennedy Justice Scalia, Justice Marshall,

text:
    BANK OF NOVA SCOTIA v. UNITED STATES
    No. 87-578.
    Argued April 27, 1988
    Decided June 22, 1988

      Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Brennan, White, Blackmun, Stevens, O'Connor, and Sc alia, JJ., joined. Scalia, J., filed a concurring opinion, post, p. 264. Marshall, J., filed a dissenting opinion, post, p. 264.

      James E. Nesland argued the cause for petitioners in both cases. With him on the briefs for petitioner in No. 87-578 were William B. Pennell, Henry Harfield, Robert G. Mor-rillo, and Robert J. Anello. William A. Cohan filed briefs for petitioners in No. 87-602.

      Deputy Solicitor General Bryson argued the cause for the United States in both cases. With him on the brief were Solicitor General Fried, Assistant Attorney General Rose,

      Robert H. Klonoff, Gary R. Allen, Robert E. Lindsay, and Alan Hechtkopf

      Together with No. 87-602, Kilpatrick et al. v. United States, also on certiorari to the same court.

      Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union Foundation et al. by John A. Powell, Helen Hersh-koff, Steven R. Shapiro, Richard F. Ziegler, and Martha F. Davis; and for the National Association of Criminal Defense Lawyers by Shelley I. Gil-man and Larry S. Pozner.

   Justice Kennedy

delivered the opinion of the Court.

The issue presented is whether a district court may invoke its supervisory power to dismiss an indictment for prosecuto-rial misconduct in a grand jury investigation, where the misconduct does not prejudice the defendants. .

r — i

In 1982, after a 20-month investigation conducted before two successive grand juries, eight defendants, including petitioners William A. Kilpatrick, Decían J. O’Donnell, Sheila C. Lerner, and The Bank of Nova Scotia, were indicted on 27 counts. The first 26 counts charged all defendants with conspiracy and some of them with mail and tax fraud. Count 27 charged Kilpatrick with obstruction of justice. The United States District Court for the District of Colorado initially dismissed the first 26 counts for failure to charge a crime, improper pleading, and, as to charges against the bank, for failure to allege that the bank or its agents had the requisite knowledge and criminal intent. Kilpatrick was tried and convicted on the obstruction of justice count.

The Government appealed the dismissal of the first 26 counts. Before oral argument, however, the Court of Appeals granted a defense motion to remand the case to the District Court for a hearing on whether prosecutorial misconduct and irregularities in the grand jury proceedings were additional grounds for dismissal. United States District Judge Fred M. Winner first presided over the post-trial motions and granted a new trial to Kilpatrick on the obstruction of justice count. The cases were later reassigned to United States District Judge John L. Kane, Jr., to complete the post-trial proceedings. After 10 days of hearings, Judge Kane dismissed all 27 counts of the indictment. The District Court held that dismissal was required for various violations of Federal Rule of Criminal Procedure 6. 594 F. Supp. 1324, 1353 (1984). Further, it ruled dismissal was proper under the “totality of the circumstances,” including the “numerous violations of Rule 6(d) and (e), Fed. R. Crim. P., violations of 18 U. S. C. §§ 6002 and 6003, violations of the Fifth and Sixth Amendments to the United States Constitution, knowing presentation of misinformation to the grand jury and mistreatment of witnesses.” Ibid. We shall discuss these findings in more detail below.

The District Court determined that “[a]s a result of the conduct of the prosecutors and their entourage of agents, the indicting grand jury was not able to undertake its essential mission” to act independently of the prosecution. Ibid. In an apparent alternative holding, the District Court also ruled that

“[t]he supervisory authority of the court must be used in circumstances such as those presented in this case to declare with unmistakable intention that such conduct is neither ‘silly’ nor ‘frivolous’ and that it will not be tolerated.” Ibid.

The Government appealed once again, and a divided panel of the Court of Appeals reversed the order of dismissal. 821 F. 2d 1456 (CA10 1987). The Court of Appeals first rejected the District Court’s conclusion that the violations of Federal Rule of Criminal Procedure 6 were an independent ground for dismissal of the indictment. It then held that “the totality of conduct before the grand jury did not warrant dismissal of the indictment,” id., at 1473, because “the accumulation of misconduct by the Government attorneys did not significantly infringe on the grand jury’s ability to exercise independent judgment.” Id., at 1474. Without a showing of such an infringement, the court held, the District Court could not exercise its supervisory authority to dismiss the indictment. Id., at 1474-1475.

The dissenting judge rejected the “view of the majority that prejudice to the defendant must be shown before a court can exercise its supervisory powers to dismiss an indictment on the basis of egregious prosecutorial misconduct.” Id., at 1476. In her view, the instances of prosecutorial misconduct relied on by the District Court pervaded the grand jury proceedings, rendering the remedy of dismissal necessary to safeguard the integrity of the judicial process notwithstanding the absence of prejudice to the defendants. Id., at 1479-1480.

We hold that, as a general matter, a district court may not dismiss an indictment for errors in grand jury proceedings unless such errors prejudiced the defendants.

II

In the exercise of its supervisory authority, a federal court “may, within limits, formulate procedural rules not specifically required by the Constitution or the Congress.” United States v. Hasting, 461 U. S. 499, 505 (1983). Nevertheless, it is well established that “[e]ven a sensible and efficient use of the supervisory power ... is invalid if it conflicts with constitutional or statutory provisions.” Thomas v. Arn, 474 U. S. 140, 148 (1985). To allow otherwise “would confer on the judiciary discretionary power to disregard the considered limitations of the law it is charged with enforcing.” United States v. Payner, 447 U. S. 727, 737 (1980). Our previous cases have not addressed explicitly whether this rationale bars exercise of a supervisory authority where, as here, dismissal of the indictment would conflict with the harmless-error inquiry mandated by the Federal Rules of Criminal Procedure.

We now hold that a federal court may not invoke supervisory power to circumvent the harmless-error inquiry prescribed by Federal Rule of Criminal Procedure 52(a). Rule 52(a) provides that “[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” The Rule was promulgated pursuant to 18 U. S. C. §687 (1946 ed.) (currently codified, as amended, at 18 U. S. C. § 3771), which invested us with authority “to prescribe, from time to time, rules of pleading, practice, and procedure with respect to any or all proceedings prior to and including verdict. .. Like its present-day successor, § 687 provided that after a Rule became effective “all laws in conflict therewith shall be of no further force and effect.” It follows that Rule 52 is, in every pertinent respect, as binding as any statute duly enacted by Congress, and federal courts have no more discretion to disregard the Rule’s mandate than théy do to disregard constitutional or statutory provisions. The balance struck by the Rule between societal costs and the rights of the accused may not casually be overlooked “because a court has elected to analyze the question under the supervisory power.” United States v. Payner, supra, at 736.

Our conclusion that a district court exceeds its powers in dismissing an indictment for prosecutorial misconduct not prejudicial to the defendant is supported by other decisions of this Court. In United States v. Mechanik, 475 U. S. 66 (1986), we held that there is “no reason not to apply [Rule 52(a)] to ‘errors, defects, irregularities, or variances’ occurring before a grand jury just as we have applied it to such error occurring in the criminal trial itself.” Id., at 71-72. In United States v. Hasting, 461 U. S., at 506, we held that “[supervisory power to reverse a conviction is not needed as a remedy when the error to which it is addressed is harmless since, by definition, the conviction would have been obtained notwithstanding the asserted error.” We stated that deterrence is an inappropriate basis for reversal where “means more narrowly tailored to deter objectionable prosecutorial conduct are available.” Ibid. We also recognized that where the error is harmless, concerns about the “integrity of the [judicial] process” will carry less weight, ibid., and that a court may not disregard the doctrine of harmless error simply “in order to chastise what the court view[s] as prosecuto-rial overreaching.” Id., at 507. Unlike the present cases, see infra, at 258-259, Hasting involved constitutional error. It would be inappropriate to devise a rule permitting federal courts to deal more sternly with nonconstitutional harmless errors than with constitutional errors that are likewise harmless.

Having concluded that our customary harmless-error inquiry is applicable where, as in the cases before us, a court is asked to dismiss an indictment prior to the conclusion of the trial, we turn to the standard of prejudice that courts should apply in assessing such claims. We adopt for this purpose, at least where dismissal is sought for nonconstitutional error, the standard articulated by Justice O’Connor in her concurring opinion in United States v. Mechanik, supra. Under this standard, dismissal of the indictment is appropriate only “if it is established that the violation substantially influenced the grand jury’s decision to indict,” or if there is “grave doubt” that the decision to indict was free from the substantial influence of such violations. United States v. Mechanik, supra, at 78. This standard is based on our decision in Kotteakos v. United States, 328 U. S. 750, 758-759 (1946), where, in construing a statute later incorporated into Rule 52(a), see United States v. Lane, 474 U. S. 438, 454-455 (1986) (Brennan, J., concurring and dissenting), we held that a conviction should not be overturned unless, after examining the record as a whole, a court concludes that an error may have had “substantial influence” on the outcome of the proceeding. 328 U. S., at 765.

To be distinguished from the cases before us are a class of cases in which indictments are dismissed, without a particular assessment of the prejudicial impact of the errors in each case, because the errors are deemed fundamental. These cases may be explained as isolated exceptions to the harmless-error rule. We think, however, that an alternative and more clear explanation is that these cases are ones in which the structural protections of the grand jury have been so compromised as to render the proceedings fundamentally unfair, allowing the presumption of prejudice. See Rose v. Clark, 478 U. S. 570, 577-578 (1986). These cases are exemplified by Vasquez v. Hillery, 474 U. S. 254, 260-264 (1986), where we held that racial discrimination in selection of grand jurors compelled dismissal of the indictment. In addition to involving an error of constitutional magnitude, other remedies were impractical and it could be presumed that a discriminatorily selected grand jury would treat defendants unfairly. See United States v. Mechanik, supra, at 70-71, n. 1. We reached a like conclusion in Ballard v. United States, 329 U. S. 187 (1946), where women had been excluded from the grand jury. The nature of the violation allowed a presumption that the defendant was prejudiced, and any inquiry into harmless error would have required unguided speculation. Such considerations are not presented here, and we review the alleged errors to assess their influence, if any, on the grand jury’s decision to indict in the factual context of the cases before us.

III

Though the standard we have articulated differs from that used by the Court of Appeals, we reach the same conclusion and affirm its decision reversing the order of dismissal. We review the record to set forth the basis of our agreement with the Court of Appeals that prejudice has not been established.

The District Court found that the Government had violated Federal Rule of Criminal Procedure 6(e) by: (1) disclosing grand jury materials to Internal Revenue Service employees having civil tax enforcement responsibilities; (2) failing to give the court prompt notice of such disclosures; (3) disclosing to potential witnesses the names of targets of the investigation; and (4) instructing two gránd jury witnesses, who had represented some of the defendants in a separate investigation of the same tax shelters, that they were not to reveal the substance of their testimony or that they had testified before the grand jury. The court also found that the Government had violated Federal Rule of Criminal Procedure 6(d) in allowing joint appearances by IRS agents before the grand jury for the purpose of reading transcripts to the jurors.

The District Court further concluded that one of the prosecutors improperly argued with an expert witness during a recess of the grand jury after the witness gave testimony adverse to the Government. It also held that the Government had violated the witness immunity statute, 18 U. S. C. §§6002, 6003, by the use of “pocket immunity” (immunity granted on representation of the prosecutor rather than by order of a judge), and that the Government caused IRS agents to mischaracterize testimony given in prior proceedings. Furthermore, the District Court found that the Government violated the Fifth Amendment by calling a number of witnesses for the sole purpose of having them assert their privilege against self-incrimination and that it had violated the Sixth Amendment by conducting postindictment interviews of several high-level employees of The Bank of Nova Scotia. Finally, the court concluded that the Government had caused IRS agents to be sworn as agents of the grand jury, thereby elevating their credibility.

As we have noted, no constitutional error occurred during the grand jury proceedings. The Court of Appeals concluded that the District Court’s findings of Sixth Amendment postindictment violations were unrelated to the grand jury’s independence and decisionmaking process because the alleged violations occurred after the indictment. We agree that it was improper for the District Court to cite such matters in dismissing the indictment. The Court of Appeals also found that no Fifth Amendment violation occurred as a result of the Government’s calling seven witnesses to testify despite an avowed intention to invoke their Fifth Amendment privilege. We agree that, in the circumstances of these cases, calling the witnesses was not error. The Government was not required to take at face value the unsworn assertions made by these witnesses outside the grand jury room. Once a witness invoked the privilege on the record, the prosecutors immediately ceased all questioning. Throughout the proceedings, moreover, the prosecution repeated the caution to the grand jury that it was not to draw any adverse inference from a witness’ invocation of the Fifth Amendment. App. 109, 130-131, 131-132, 155, 169-170.

In the cases before us we do not inquire whether the grand jury’s independence was infringed. Such an infringement may result in grave doubt as to a violation’s effect on the grand jury’s decision to indict, but we did not grant certiorari to review this conclusion. We note that the Court of Appeals found that the prosecution’s conduct was not “a significant infringement on the grand jury’s ability to exercise independent judgment,” 821 F. 2d, at 1475, and we accept that conclusion here. Finally, we note that we are not faced with a history of prosecutorial misconduct, spanning several cases, that is so systematic and pervasive as to raise a substantial and serious question about the fundamental fairness of the process which resulted in the indictment.

We must address, however, whether, despite the grand jury’s independence, there was any misconduct by the prosecution that otherwise may have influenced substantially the grand jury’s decision to indict, or whether there is grave doubt as to whether the decision to indict was so influenced. Several instances of misconduct found by the District Court — that the prosecutors manipulated the grand jury investigation to gather evidence for use in civil audits; violated the secrecy provisions of Rule 6(e) by publicly identifying the targets and the subject matter of the grand jury investigation; and imposed secrecy obligations in violation of Rule 6(e) upon grand jury witnesses — might be relevant to an allegation of a purpose or intent to abuse the grand jury process. Here, however, it is plain that these alleged breaches could not have affected the charging decision. We have no occasion to consider them further.

We are left to consider only the District Court’s findings that the prosecutors: (1) fashioned and administered unauthorized “oaths” to IRS agents in violation of Rule 6(c); (2) caused the same IRS agents to “summarize” evidence falsely and to assert incorrectly that all the evidence summarized by them had been presented previously to the grand jury; (3) deliberately berated and mistreated an expert witness for the defense in the presence of some grand jurors; (4) abused its authority by providing “pocket immunity” to 23 grand jury witnesses; and (5) permitted IRS agents to appear in tandem to present evidence to the grand jury in violation of Rule 6(d). We consider each in turn.

The Government administered oaths to IRS agents, swearing them in as “agents” of the grand jury. Although the administration of such oaths to IRS agents by the Government was unauthorized, there is ample evidence that the jurors understood that the agents were aligned with the prosecutors. At various times a prosecutor referred to the agents as “my agent(s),” App. 96, 98, 99, 108, 110, 113, 114,' 115, 117, 137, 153, 163, 165, 171, 176, and, in discussions with the prosecutors, grand jurors referred to the agents as “your guys” or “your agents.” Id., at 117, 157. There is nothing in the record to indicate that the oaths administered to the IRS agents caused their reliability or credibility to be elevated, and the effect, if any, on the grand jury’s decision to indict was negligible.

The District Court found that, to the prejudice of petitioners, IRS agents gave misleading and inaccurate summaries to the grand jury just prior to the indictment. Because the record does not reveal any prosecutorial misconduct with respect to these summaries, they provide no ground for dismissing the indictment. The District Court’s finding that the summaries offered by IRS agents contained evidence that had not been presented to the grand jury in prior testimony boils down to a challenge to the reliability or competence of the evidence presented to the grand jury. We have held that an indictment valid on its face is not subject to such a challenge. United States v. Calandra, 414 U. S. 338, 344-345 (1974). To the extent that a challenge is made to the accuracy of the summaries, the mere fact that evidence itself is unreliable is not sufficient to require a dismissal of the indictment. See Costello v. United States, 350 U. S. 359, 363 (1956) (holding that a court may not look behind the indictment to determine if the evidence upon which it was based is sufficient). In light of the record, the finding that the prosecutors knew the evidence to be false or misleading, or that the Government caused the agents to testify falsely, is clearly erroneous. Although the Government may have had doubts about the accuracy of certain aspects of the summaries, this is quite different from having knowledge of falsity.

The District Court found that a prosecutor was abusive to an expert defense witness during a recess and in the hearing of some grand jurors. Although the Government concedes that the treatment of the expert tax witness was improper, the witness himself testified that his testimony was unaffected by this misconduct. The prosecutors instructed the grand jury to disregard anything they may have heard in conversations between a prosecutor and a witness, and explained to the grand jury that such conversations should have no influence on its deliberations. App. 191. In light of these ameliorative measures, there is nothing to indicate that the prosecutor’s conduct toward this witness substantially affected the grand jury’s evaluation of the testimony or its decision to indict.

The District Court found that the Government granted “pocket immunity” to 23 witnesses during the course of the grand jury proceedings. Without deciding the propriety of granting such immunity to grand jury witnesses, we conclude the conduct did not have a substantial effect on the grand jury’s decision to indict, and it does not create grave doubt as to whether it affected the grand jury’s decision. Some prosecutors told the grand jury that immunized witnesses retained their Fifth Amendment privilege and could refuse to testify, while other prosecutors stated that the witnesses had no Fifth Amendment privilege, but we fail to see how this could have had a substantial effect on the jury’s assessment of the testimony or its decision to indict. The significant point is that the jurors were made aware that these witnesses had made a deal with the Government.

Assuming the Government had threatened to withdraw immunity from a witness in order to manipulate that witness’ testimony, this might have given rise to a finding of prejudice. There is no evidence in the record, however, that would support such a finding. The Government told a witness’ attorney that if the witness “testified for Mr. Kilpat-rick, all bets were off.” The attorney, however, ultimately concluded that the prosecution did not mean to imply that immunity would be withdrawn if his client testified for Kil-patrick, but rather that his client would be validly subject to prosecution for perjury. 594 F. Supp., at 1338. Although the District Court found that the Government’s statement was interpreted by the witness to mean that if he testified favorably for Kilpatrick his immunity would be withdrawn, ibid., neither Judge Winner nor Judge Kane made a definitive finding that the Government improperly threatened the witness. The witness may have felt threatened by the prosecutor’s statement, but his subjective fear cannot be ascribed to governmental misconduct and was, at most, a consideration bearing on the reliability of his testimony.

Finally, the Government permitted two IRS agents to appear before the grand jury at the same time for the purpose of reading transcripts. Although allowing the agents to read to the grand jury in tandem was a violation of Rule 6(d), it was not prejudicial. The agents gave no testimony of their own during the reading of the transcripts. The grand jury was instructed not to ask any questions and the agents were instructed not to answer any questions during the readings. There is no evidence that the agents’ reading in tandem enhanced the credibility of the testimony or otherwise allowed the agents to exercise undue influence.

In considering the prejudicial effect of the foregoing instances of alleged misconduct, we note that these incidents occurred as isolated episodes in the course of a 20-month investigation, an investigation involving dozens of witnesses and thousands of documents. In view of this context, those violations that did occur do not, even when considered cumulatively, raise a substantial question, much less a grave doubt, as to whether they had a substantial effect on the grand jury’s decision to charge.

Errors of the kind alleged in these cases can be remedied adequately by means other than dismissal. For example, a knowing violation of Rule 6 may be punished as a contempt of court. See Fed. Rule Crim. Proc. 6(e)(2). In addition, the court may direct a prosecutor to show cause why he should not be disciplined and request the bar or the Department of Justice to initiate disciplinary proceedings against him. The court may also chastise the prosecutor in a published opinion. Such remedies allow the court to focus on the culpable individual rather than granting a windfall to the unprejudiced defendant.

IV

We conclude that the District Court had no authority to dismiss the indictment on the basis of prosecutorial misconduct absent a finding that petitioners were prejudiced by such misconduct. The prejudicial inquiry must focus on whether any violations had an effect on the grand jury’s decision to indict. If violations did substantially influence this decision, or if there is grave doubt that the decision to indict was free from such substantial influence, the violations cannot be deemed harmless. The record will not support the conclusion that petitioners can meet this standard. The judgment of the Court of Appeals is affirmed.

It is-so ordered.

Justice Scalia,

concurring.

I agree that every United States court has an inherent supervisory authority over the proceedings conducted before it, which assuredly includes the power to decline to proceed on the basis of an indictment obtained in violation of the law. I also agree that we have authority to review lower courts’ exercise of this supervisory authority, insofar as it affects the judgments brought before us, though I do not see the basis for any direct authority to supervise lower courts. Cf. Frazier v. Heebe, 482 U. S. 641, 651-652 (1987) (Rehnquist, C. J., dissenting). Even less do I see a basis for any court’s “supervisory powers to discipline the prosecutors of its jurisdiction,” United States v. Hasting, 461 U. S. 499, 505 (1983), except insofar as concerns their performance before the court and their qualifications to be members of the court’s bar.

I join the opinion of the Court because I understand the supervisory power at issue here to be of the first sort.

Justice Marshall,

dissenting.

I cannot concur in the Court’s decision to apply harmless-error analysis to violations of Rule 6 of the Federal Rules of Criminal Procedure. I already have outlined my objections to the Court’s approach, which converts “Congress’ command regarding the proper conduct of grand jury proceedings to a mere form of words, without practical effect.” United States v. Mechanik, 475 U. S. 66, 84 (1986) (Marshall, J., dissenting). Because of the strict protection of the secrecy of grand jury proceedings, instances of prosecutorial misconduct rarely come to light. This is especially true in the pretrial setting, because defendants’ chief source of information about grand jury proceedings is governmental disclosures under the Jencks Act, 18 U. S. C. §3500, which do not occur until trial is underway. The fact that a prosecutor knows that a Rule 6 violation is unlikely to be discovered gives the Rule little enough bite. To afford the occasional revelation of prosecutorial misconduct the additional insulation of harmless-error analysis leaves Rule 6 toothless. Moreover, as I argued in Mechanik, in this context “[a]ny case-by-case analysis to determine whether the defendant was actually prejudiced is simply too speculative to afford defendants meaningful protection, and imposes a difficult burden on the courts that outweighs the benefits to be derived.” 475 U. S., at 86. Given the nature of grand jury proceedings, Rule 6 violations can be deterred and redressed effectively only by a per se rule of dismissal. Today’s decision reduces Rule 6 to little more than a code of honor that prosecutors can violate with virtual impunity. I respectfully dissent.


source: Caselaw Access Project

author:
      Justice Brennan
      Justice Scalia,

license: Public Domain

text:
    HOUSTON v. LACK, WARDEN.
    No. 87-5428.
    Argued April 27, 1988
    Decided June 24, 1988

      Brennan, J., delivered the opinion of the Court, in which White, Marshall, Blackmun, and Stevens, JJ., joined. Scalia, J., filed a dissenting opinion, in which Rehnquist, C. J., and O’Connor and Kennedy, JJ., joined, post, p. 277.

      Penny J. White, by appointment of the Court, 484 U. S. 1057, argued the cause and filed a brief for petitioner.

      Jerry L. Smith, Deputy Attorney General of Tennessee, argued the cause for respondent. With him on the brief were W. J. Michael Cody, Attorney General, and Gordon W. Smith, Assistant Attorney General.

      A brief of amici curiae urging affirmance was filed for the State of South Dakota et al. by Roger A. Tellinghuisen. Attorney General of South Dakota, and Craig M. Eickstadt, Assistant Attorney General, and by the Attorneys General for their respective States as follows: John Van de Kamp of California, Robert Buttenvorth of Florida, Jim Jones of Idaho, Linley E. Pearson of Indiana, Robert T. Stephan of Kansas, Michael C. Moore of Mississippi, William L. Webster of Missouri, Mike Greely of Montana, Robert M. Spire of Nebraska, Stephen E. Merrill of New Hampshire, W. Cary Edwards of New Jersey, Lacy H. Thornburg of North Carolina, Robert Henry of Oklahoma, Travis Medlock of South Carolina, Mary Sue Terry of Virginia, Joseph B. Meyer of Wyoming, and Dave Frohnmayer of Oregon.

   Justice Brennan

delivered the opinion of the Court.

Pro se prisoners can file notices of appeal to the federal courts of appeals only by delivering them to prison authorities for forwarding to the appropriate district court. The question we decide in this case is whether under Federal Rule of Appellate Procedure 4(a)(1) such notices are to be considered filed at the moment of delivery to prison authorities for forwarding or at some later point in time.

I

Incarcerated in a Tennessee prison, petitioner Prentiss Houston filed a pro se petition under 28 U. S. C. § 2254 for a writ of habeas corpus in Federal District Court in Tennessee. That court declined to appoint counsel and entered judgment dismissing the habeas petition on January 7, 1986. Still acting pro se, petitioner drafted a notice of appeal and, on February 3, 1986 (27 days after the judgment), deposited it with the prison authorities for mailing to the District Court. This date of deposit was recorded in the prison log of outgoing mail. Petitioner also states without contradiction that he requested the prison to certify his notice for proof that it had been deposited for mailing on that date and requested that the notice be sent air mail, but that the prison refused these requests because he lacked funds to pay the fees the prison charged for such services. The record does not contain the envelope in which the notice of appeal was mailed, and therefore does not contain the postmark or any other evidence of when the.prison authorities actually mailed the letter. The prison log, however, suggests that in addressing the notice the petitioner may have mistakenly used the post office box number of the Tennessee Supreme Court rather than that of the Federal District Court (both of which are in Jackson, Tennessee, approximately 81 miles from the prison). Although there is no direct evidence of the date on which the District Court received the notice, the notice was stamped “filed” by the Clerk of the District Court at 8:30 a.m. on February 7, 1986, 31 days after the District Court’s judgment was entered — that is, one day after the expiration of the 30-day filing period for taking an appeal established by Federal Rule of Appellate Procedure 4(a)(1).

Neither the District Court nor respondent suggested that the notice of appeal might be untimely. Rather, the District Court issued a certificate of probable cause on February 18, 1986, noting that the appeal presented a “question of first impression” in the jurisdiction. App. 22. On March 5, 1986, the United States Court of Appeals for the Sixth Circuit circulated a briefing schedule to the parties. On March 21, 1986, however, 13 days after the time had expired to request an extension of the time for filing a notice of appeal under Federal Rule of Appellate Procedure 4(a)(5), the Court of Appeals discovered the time problem concerning the filing of petitioner’s notice of appeal and alerted the parties by entering an order requiring petitioner to show cause why the appeal should not be dismissed for want of jurisdiction. Eventually the Court of Appeals appointed counsel to argue the time question for petitioner. On May 22, 1987, the court entered an order dismissing the appeal as jurisdictionally out of time. We granted certiorari, 484 U. S. 1025 (1988), and now reverse.

II

We last addressed questions concerning the timely filing of notices of appeals by pro se prisoners in Fallen v. United States, 378 U. S. 139 (1964). Fallen involved what was then Rule 37(a) of the Federal Rules of Criminal Procedure (the substance of which now appears in Federal Rule of Appellate Procedure 4(b)), under which a criminal defendant seeking to appeal had to file a notice of appeal with the clerk of the district court within 10 days after entry of the judgment being appealed. Two days before the 10-day deadline, Fallen, acting without counsel and while incarcerated, deposited a notice of appeal with prison authorities for mailing to the Clerk of the District Court. The notice, however, was not received by the Clerk of the court until four days after the deadline. We noted that “the timely filing of a notice of appeal is a jurisdictional prerequisite to the hearing of the appeal,” 378 U. S., at 142, but concluded that Rule 37(a) could not be read literally to bar Fallen’s appeal because, under the circumstances of that case, Fallen “had done all that could reasonably be expected to get the letter to its destination within the required 10 days.” Id., at 144. Justice Stewart, joined by Justices Clark, Harlan, and Brennan, concurred on the ground that “for purposes of Rule 37(a)(2), a defendant incarcerated in a federal prison and acting without the aid of counsel files his notice of appeal in time, if, within the 10-day period provided by the Rule, he delivers such notice to the prison authorities for forwarding to the clerk of the District Court. In other words, in such a case the jailer is in effect the clerk of the District Court within the meaning of Rule 37.” Ibid.

We conclude that the analysis of the concurring opinion in Fallen applies here and that petitioner thus filed his notice within the requisite 30-day period when, three days before the deadline, he delivered the notice to prison authorities for forwarding to the District Court. The situation of prisoners seeking to appeal without the aid of counsel is unique. Such prisoners cannot take the steps other litigants can take to monitor the processing of their notices of appeal and to ensure that the court clerk receives and stamps their notices of appeal before the 30-day deadline. Unlike other litigants, pro se prisoners cannot personally travel to the courthouse to see that the notice is stamped “filed” or to establish the date on which the court received the notice. 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. And if other litigants do choose to use the mail, they can at least place the notice directly into the hands of the United States Postal Service (or a private express carrier); and they can follow its progress by calling the court to determine whether the notice has been received and stamped, knowing that if the mail goes awry they can personally deliver notice at the last moment or that their monitoring will provide them with evidence to demonstrate either excusable neglect or that the notice was not stamped on the date the court received it. Pro se prisoners cannot take any of these precautions; nor, by definition, do they have lawyers who can take these precautions for them. 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 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.

Respondent stresses that a petition for habeas corpus is a civil action, see Browder v. Director, Dept. of Corrections of Illinois, 434 U. S. 257, 265, n. 9, 269 (1978), and that the timing of the appeal here is thus, unlike the direct criminal appeal at issue in Fallen, subject to the statutory deadline set out in 28 U. S. C. § 2107. But, as relevant here, § 2107 merely provides:

“[N]o appeal shall bring any judgment, order or decree in an action, suit or proceeding of a civil nature before a court of appeals for review unless notice of appeal is filed, within thirty days after the entry of such judgment, order or decree.”

The statute thus does not define when a notice of appeal has been “filed” or designate the person with whom it must be filed, and nothing in the statute suggests that, in the unique circumstances of a pro se prisoner, it would be inappropriate to conclude that a notice of appeal is “filed” within the meaning of § 2107 at the moment it is delivered to prison officials for forwarding to the clerk of the district court.

Federal Rules of Appellate Procedure 3(a) and 4(a)(1) are a little more specific. Rule 3(a) provides: “An 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.” Rule 4(a)(1) provides:

“In a civil case in which an appeal is permitted by law as of right from a district court to a court of appeals 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 the judgment or order appealed from. ...”

Rules 3(a) and 4(a)(1) thus 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. The Rules are not dispositive on this point, for neither Rule sets forth criteria for determining the moment at which the “filing” has occurred. See Fallen, 378 U. S., at 144 (Stewart, J., joined by Clark, Harlan, and Brennan, JJ., concurring) (concluding that under Rule 37(a) a “filing with the clerk of the district court” of a pro se prisoner’s notice of appeal occurs when he delivers it to prison authorities for forwarding to the district court). Indeed, our own Rules recognize that the moment when a document is “filed” with a court can be the moment it is sent to that court. See Rule 28.2 (providing that a document can be deemed “filed” at the moment it is deposited in the mail for delivery to the Clerk of the Court).

Respondent concedes that receipt of a notice of appeal by the clerk of the district court suffices to meet the “filing” requirement under Rules 3 and 4 even though the notice has not yet been formally “filed” by the clerk of the court. Parissi v. Telechron, Inc., 349 U. S. 46, 47 (1965); see also, e. g., Deloney v. Estelle, 661 F. 2d 1061, 1062-1063 (CA5 1981); Aldabe v. Aldabe, 616 F. 2d 1089, 1091 (CA9 1980); United States v. Solly, 545 F. 2d 874, 876 (CA3 1976). But the rationale for concluding that receipt constitutes filing in the ordinary civil case is that the appellant has no control over delays between the court clerk’s receipt and formal filing of the notice. See, e. g., Deloney, supra, at 1063; Aldabe, supra, at 1091; Solly, supra, at 876. This rationale suggests a far different conclusion here, since, as we discussed above, the lack of control of pro se prisoners over delays extends much further than that of the typical civil litigant: pro se prisoners have no control over delays between the prison authorities’ receipt of the notice and its filing, and their lack of freedom bars them from delivering the notice to the court clerk personally.

True, a large body of lower court authority has rejected the general argument that a notice of appeal is “filed” at the moment it is placed in the mail addressed to the clerk of the court — this on the ground that receipt by the district court is required. See, e. g., Haney v. Mizell Memorial Hospital, 744 F. 2d 1467, 1472 (CA11 1984); In re LBL Sports Center, Inc., 684 F. 2d 410, 413 (CA6 1982); Sanchez v. Board of Regents of Texas Southern University, 625 F. 2d 521, 522 (CA5 1980); In re Bad Bubba Racing Products, Inc., 609 F. 2d 815, 816 (CA5 1980); Allen v. Schnuckle, 253 F. 2d 195, 197 (CA9 1958). But see In re Pigge, 539 F. 2d 369 (CA4 1976) (adopting the mailbox rule). To the extent these cases state the general rule in civil appeals, we do not disturb them. But we are persuaded that this general rule should not apply here. First, as we discussed above, nothing in Rules 3 and 4 compels the conclusion that, in all cases, receipt by the clerk of the district court is the moment of filing. The lower courts have, in fact, also held that receipt by a District Judge, Halfen v. United States, 324 F. 2d 52, 54 (CA10 1963), or at the former address for the District Court Clerk, Lundy v. Union Carbide Corp., 695 F. 2d 394, 395, n. 1 (CA9 1982), can be the moment of filing. And the United States Court of Appeals for the Federal Circuit does not read Rule 4(a) as necessarily making receipt the moment of filing, for under Rule 10(a)(1) of that Circuit a notice of appeal can be deemed filed on mailing if the district court from which the appeal is taken has adopted a rule which deems a document filed on mailing. See generally Placeway Construction Corp. v. United States, 713 F. 2d 726 (CA Fed. 1983).

Second, the policy grounds for the general rule making receipt the moment of filing suggest that delivery to prison authorities should instead be the moment of filing in this particular context. As detailed above, the moment at which pro se prisoners necessarily lose control over and contact with their notices of appeal is at delivery to prison authorities, not receipt by the clerk. Thus, whereas the general rule has been justified on the ground that a civil litigant who chooses to mail a notice of appeal assumes the risk of untimely delivery and filing, see, e. g., Bad Bubba, supra, at 816, a pro se prisoner has no choice but to hand his notice over to prison authorities for forwarding to the court clerk. Further, the rejection of the mailbox rule in other contexts has been based in part on concerns that it would increase disputes and uncertainty over when a filing occurred and that it would put all the evidence about the date of filing in the hands of one party. See, e. g., United States v. Lombardo, 241 U. S. 73, 78 (1916). These administrative concerns lead to the opposite conclusion here. 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. These questions are made particularly difficult here because any delays might instead be attributable to the prison authorities’ failure to forward the notice promptly. Indeed, since, as everyone concedes, the prison’s failure to act promptly cannot bind a pro se prisoner, relying on receipt in this context would raise yet more difficult to resolve questions whether the prison authorities were dilatory. The 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 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.

We thus conclude that the Court of Appeals had jurisdiction over petitioner’s appeal because the notice of appeal was filed at the time petitioner delivered it to the prison authorities for forwarding to the court clerk. The judgment of the Court of Appeals is accordingly

Reversed.

Justice Scalia,

with whom The Chief Justice, Justice O’Connor, and Justice Kennedy join, dissenting.

Today’s decision obliterates the line between textual construction and textual enactment. It would be within the realm of normal judicial creativity (though in my view wrong) to interpret the phrase “filed with the clerk” to mean “mailed to the clerk,” or even “mailed to the clerk or given to a person bearing an obligation to mail to the clerk.” But interpreting it to mean “delivered to the clerk or, if you are a prisoner, delivered to your warden” is no more acceptable than any of an infinite number of variants, such as: “delivered to the clerk or, if you are out of the country, delivered to a United States consul”; or “delivered to the clerk or, if you are a soldier on active duty in a war zone, delivered to your commanding officer”; or “delivered to the clerk or, if you are held hostage in a foreign country, meant to be delivered to the clerk.” Like these other examples, the Court’s rule makes a good deal of sense. I dissent only because it is not the rule that we have promulgated through congressionally prescribed procedures.

I

This case requires us to construe one statutory provision and two provisions of the Federal Rules of Appellate Procedure. The former is 28 U. S. C. § 2107, which sets a statutory, jurisdictional deadline for the filing of notices of appeal in civil actions such as this habeas proceeding. It provides:

“[N]o appeal shall bring any judgment, order or decree in an action, suit, or proceeding of a civil nature before a court of appeals for review unless notice of appeal is filed, within thirty days after the entry of such judgment, order or decree” (emphasis added).

Although the statute itself does not define when a notice of appeal has been “filed” or designate with whom it must be filed, the Federal Rules of Appellate Procedure fill in these details. Federal Rule of Appellate Procedure 3(a) provides:

“An 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” (emphasis added).

This is supplemented by Federal Rule of Appellate Procedure 4(a)(1), which provides:

“In a civil case in which an appeal is permitted by law as of right from a district court to a court of appeals 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 the judgment or order appealed from ...” (emphasis added).

It is clear, then, that there was a notice of appeal effective to give the Court of Appeals jurisdiction in this case if, and only if, it was “filed with the clerk of the district court” within the 30-day period.

The Court observes that “filed with the clerk” could mean many different things, including merely “mailed to the clerk.” Ante, at 272-274. That is unquestionable. But it is the practice in construing such a phrase to pick a single meaning, and not to impart first one, and then another, as the judicially perceived equities of individual cases might require. Some statutory terms, such as “restraint of trade,” Business Electronics Corp. v. Sharp Electronics Corp., 485 U. S. 717, 731-733 (1988), invite judicial judgment from case to case; but a provision establishing a deadline upon which litigants are supposed to rely is not of that sort. That is why we adopted the proviso in Rule 28.2 of our own Rules, which the Court unexpectedly invokes in support of its position. Rule 28.2 reads:

“To be timely filed, a document must be received by the Clerk within the time specified for filing, except that any document shall be deemed timely filed if it has been deposited in a United States post office or mailbox, with first-class postage prepaid, and properly addressed to the Clerk of this Court, within the time allowed for filing, and if there is filed with the Clerk a notarized statement by a member of the Bar of this Court, setting forth the details of the mailing, and stating that to his knowledge the mailing took place on a particular date within the permitted time.” (Emphasis added.)

Since “received by the Clerk” must, in the context of such a rule, reasonably be understood to have a unitary meaning, which would of course normally be actual receipt, we felt constrained to specify an exception in which mailing would suffice. It would have been as inappropriate (though no less possible) there as in the present case to create the exception through interpretation — reasoning that the Post Office can be deemed the agent of the addressee, Household Fire & Carriage Accident Ins. Co. v. Grant, 4 Ex. D. 216 (1879) (“[P]ost office [is] the agent of both parties”), and hence it is theoretically possible to consider the document “received by” the Clerk when it is mailed, and the policy considerations usually militating in favor of a rule of actual receipt are well enough satisfied by an affidavit from a member of our Bar, etc.

If the need for a uniform meaning is apparent even with respect to ordinary statutory deadlines, and indeed even with respect to court-created rules that can be amended at the judges’ discretion, it is even more apparent when a statutory deadline bearing upon the very jurisdiction of the courts is at issue. In that context, allowing courts to give different meanings from case to case allows them to expand and contract the scope of their own competence. That this is not envisioned is plain (if any citation is needed) from Rule 26(b) of the Federal Rules of Appellate Procedure, which specifically excepts from the courts’ broad equitable power to “suspend the requirements or provisions of any of these rules in a particular case,” Fed. Rule App. Proc. 2, the power to “enlarge the time for filing a notice of appeal.” When we adopted Rules 3 and 4 of the Federal Rules of Appellate Procedure we delayed, as required by law, their effective date until 90 days after they were “reported to Congress by the Chief Justice,” 28 U. S. C. § 2072, so that Congress might consider whether it wished to legislate any changes in them. Surely Congress could not have imagined that “filing . . . with the clerk” in Rule 3(a) and “filed with the clerk” in Rule 4(a)(1) could have a meaning as remote from plain English as “delivered to the warden of a prison” — or whatever else might be held in the future to fit today’s announced “rationale . . . that the appellant has no control over delays,” ante, at 273.

The Court seeks to have it both ways, at one and the same time abandoning a unitary interpretation of “filed” for purposes of the present decision, yet purporting “not [to] disturb” the many cases stating that a notice of appeal is filed when received, “[t]o the extent these cases state the general rule.” Ante, at 274. See, e. g., Parissi v. Telechron, Inc., 349 U. S. 46, 47 (1955) (holding that timely receipt satisfies 28 U. S. C. §2107); United States v. Lombardo, 241 U. S. 73, 76 (1916) (“A paper is filed when it is delivered to the proper official and by him received and filed”); Haney v. Mizell Memorial Hospital, 744 F. 2d 1467, 1472 (CA11 1984); In re LBL Sports Center, Inc., 684 F. 2d 410, 413 (CA6 1982); In re Robinson, 640 F. 2d 737, 738 (CA5 1981); In re Ramsey, 612 F. 2d 1220, 1223 (CA9 1980); In re Bad Bubba Racing Products, Inc., 609 F. 2d 815, 816 (CA5 1980); Ward v. Atlantic Coast Line R. Co., 265 F. 2d 75, 80 (CA5 1959), rev’d on other grounds, 362 U. S. 396 (1960); Allen v. Schnuckle, 253 F. 2d 195, 197 (CA9 1958). It seems to me that to leave them undisturbed only “to the extent [they] state the general rule’ is to disturb them profoundly. The rationale of today’s decision is that any of various theoretically possible meanings of “filed with the clerk” may be adopted — even one as remote as “addressed to the clerk and given to the warden” — depending upon what equity requires. It may turn out that we will not often agree that equity requires anything other than “received by the clerk,” but parties will often argue it, and the lower courts will sometimes hold it. Thus is wasteful litigation in our appellate courts multiplied.

Petitioner Prentiss Houston’s notice of appeal in this case was stamped received 31 days after the District Court’s judgment was entered — that is, one day after the expiration of the 30-day filing period set out in Federal Rule of Appellate Procedure 4(a)(1). Since there is no legal warrant for creating a special exception to the rule of receipt for the benefit of incarcerated pro se appellants, I cannot join the Court in reversing the judgment on that basis.

II

Petitoner advanced several additional arguments supporting reversal which the Court did not have to reach. Ante, at 276-277, n. 4. I must consider them, and, having done so, find that none of them has merit-

First, petitioner asserts that his untimeliness in filing his notice of appeal should be excused because he “did all he could under the circumstances,” as required by Fallen v. United States, 378 U. S. 139, 144 (1964). This argument fails because there is no warrant for equitable tolling of filing deadlines in the civil context of this habeas proceeding as there was in the criminal context that was at issue in Fallen. The bar erected by § 2107 in civil cases is jurisdictional, and this Court is without power to waive it, ho matter what the equities of a particular case. As noted above, this is made explicit in Rule 26(b) of the Federal Rules of Appellate Procedure. In Fallen, by contrast, there was no jurisdictional statute at issue, and the relevant Federal Rule of Criminal Procedure 2 provided that a “just determination” should be achieved. See 378 U. S., at 142.

Second, petitioner maintains that he was lulled into thinking that his appeal was timely by the issuance of a certificate of probable cause and briefing schedule, and thus did not move for an extension of time within the 30-day grace period, see Fed. Rule App. Proc. 4(a)(5). This, he suggests, constitutes a “unique circumstance” of the sort recognized in Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U. S. 215, 217 (1962); Thompson v. INS, 375 U. S. 384, 387 (1964); and Wolfsohn v. Hankin, 376 U. S. 203 (1964). Petitioner asserts that those cases establish an equitable doctrine that sometimes permits the late filing of notices of appeal. Our later cases, however, effectively repudiate the Harris Truck Lines approach, affirming that the timely filing of a notice of appeal is “mandatory and jurisdictional.” Griggs v. Provident Consumer Discount Co., 459 U. S. 56, 58, 61 (1982); see also Browder v. Director, Dept. of Corrections of Illinois, 434 U. S. 257 (1978). As we observed in United States v. Locke, 471 U. S. 84, 100-101 (1985):

“Filing deadlines, like statutes of limitations, necessarily operate harshly and arbitrarily with respect to individuals who fall just on the other side of them, but if the concept of a filing deadline is to have any content, the deadline must be enforced. ‘Any less rigid standard would risk encouraging a lax attitude toward filing dates,’ United States v. Boyle, 469 U. S. [241,] 249 [(1985)]. A filing deadline cannot be complied with, substantially or otherwise, by filing late — even by one day.”

Finally, petitioner asserts that his notice of appeal should be treated as a motion for extension of time under Federal Rule of Appellate Procedure 4(a)(5). That Rule, however, was specifically amended to require that a motion must be filed with the district court to obtain an extension, and its text precludes treating a late filed notice as being a motion. As revised, the Rule explicitly states:

“The district court, upon a showing of excusable neglect or good cause, may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the time prescribed by this Rule 4(a)” (emphasis added).

The Advisory Committee’s Notes on Appellate Rule 4(a)(5) explain:

“Under the present rule there is a possible implication that prior to the time the initial appeal time has run, the district court may extend the time on the basis of an informal application. The amendment would require that the application must be made by motion, though the motion may be made ex parte. After the expiration of the initial time a motion for the extension of the time must be made in compliance with the F. R. C. P. and local rules of the district court.” 28 U. S. C. App., p. 469.

The courts below were therefore without power to treat petitioner’s late filed notice of appeal as a motion for extension of time under Federal Rule of Appellate Procedure 4(a)(5).

* * *

Twenty-four years ago Justice Clark, joined by Justices Harlan, Stewart, and White, said in the dissent in Thompson:

“Rules of procedure are a necessary part of an orderly system of justice. Their efficacy, however, depends upon the willingness of the courts to enforce them according to their terms. Changes in rules whose inflexibility has turned out to work hardship should be effected by the process of amendment, not by ad hoc relaxations by this Court in particular cases. Such dispensations in the long run actually produce mischievous results, undermining the certainty of the rules and causing confusion among the lower courts and the bar.” 375 U. S., at 390.

That could not be more correct, nor more applicable to the present case. The filing rule the Court supports today seems to me a good one, but it is fully within our power to adopt it by an amendment of the Rules. Doing so instead in the present fashion, not only evades the statutory requirement that changes be placed before Congress so that it may reject them by legislation before they become effective, 28 U. S. C. §2072, but destroys the most important characteristic of filing requirements, which is the certainty of their application. It is hard to understand why the Court felt the need to short-circuit the orderly process of rule amendment in order to provide immediate relief in the present case. Petitioner delivered his notice of appeal to the'warden three days before it was due to be filed with the Clerk. It would have been imprudent even to place it in a mailbox with the deadline so close at hand.

For the reasons stated, I respectfully dissent.

       At the time Rule 37(a), as amended in 1956 and 1962, provided:
      “(1) Notice of Appeal. An appeal permitted by law from a district court to a court of appeals is taken by filing with the clerk of the district court a notice of appeal in duplicate. .. .
      “(2) Time for Taking Appeal. An appeal by a defendant may be taken within 10 days after entry of the judgment or order appealed from.”

       Respondent suggests that this Court has rejected the mailbox rule, citing Parissi v. Telechron, Inc., 349 U. S. 46 (1955), and United States v. Lombardo, 241 U. S. 73 (1916). Parissi, though, merely held that timely receipt was sufficient, not necessary, to meet the filing requirement under 28 U. S. C. §2107, and Lombardo did not involve the filing of a notice of appeal but a filing requirement imposed by a criminal statute. Neither case involved the efforts of a prisoner to file a notice of appeal without the aid of counsel.

       In this very case, for example, it is not clear when the notice was actually mailed, and petitioner alleges both that the mail service was slower than advertised and that the date stamped on the notice is not the date of receipt. In connection with the latter allegation, he notes that most of the papers mailed to the District Court were stamped as filed at 8:30 a.m. and suggests that the time of stamping may simply reflect a method of processing incoming papers wherein the papers received in the court’s post office box are not collected and stamped until the start of the following working day. See generally In re Piper Aircraft Distribution System Antitrust Litigation, 551 F. 2d 213, 216, n. 7 (CA8 1977) (leaving it open to party to prove that clerk received the notice of appeal on a date earlier than that recorded on it); Da’Ville v. Wise, 470 F. 2d 1364, 1365, and n. 2 (CA5 1973) (refusing to hold notice untimely when the court clerk’s practices created a strong possibility that the notice was not stamped when received).

       Because of our holding, we need not reach petitioner’s other arguments: that any untimeliness should be excused because he “did all he could” under Fallen v. United States, 378 U. S. 139, 144 (1964); that the District Court received the notice on time but stamped it late; that he was lulled into thinking that his appeal was timely by the issuance of a certificate of probable cause and a briefing schedule and thus any untimeliness should be excused because of “unique circumstances” under Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U. S. 215, 217 (1962), and Thompson v. INS, 375 U. S. 384 (1964); and that his notice of appeal should be treated as a motion for extension of time under Rule 4(a)(5).