Eleanor Ritter

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Under the “prison mailbox rule,” an inmate’s notice of appeal in either a criminal or civil case is considered filed at the moment the notice is given to prison authorities to be mailed. But the prison mailbox rule originated as a common law rule––having developed in Fallen v. United States and Houston v. Lack––and was not codified in the Federal Rules of Appellate Procedure until 1993. In light of its complex origins, circuit courts have split over to whom and to which types of filings the rule should apply. More specifically, courts have disagreed over whether the prison mailbox rule should only apply to prisoners entirely unrepresented by counsel––as suggested in Houston––or whether it should extend even to those who are represented in some capacity at the time of filing. This Note analyzes a recent case, Cretacci v. Call, in which the Sixth Circuit joined the majority of circuits and held that the prison mailbox rule applies only to fully unrepresented prisoners. This Note argues that the Sixth Circuit’s opinion relies on an overly wooden view of “representation,” a departure from the text of the Appellate Rules, and unsound distinctions based on the type of filing at issue. By placing misguided limitations on the prison mailbox rule, Cretacci erodes the ability of passively represented litigants to file claims and appeals.