louie-l-lopez-v-charles-d-marshall-attorney-general-of-the-state-of , 76 F.3d 387 ( 1995 )

76 F.3d 387

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Louie L. LOPEZ, Petitioner-Appellant,
v.
Charles D. MARSHALL; Attorney General of the State of
California, Respondents-Appellees.
Louie L. LOPEZ, Petitioner-Appellant,
v.
Charles D. MARSHALL; Attorney General of the State of
California, Respondents-Appellees.

Nos. 95-55362, 95-55365.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 6, 1995.*
Decided Dec. 11, 1995.

Before: SNEED, TROTT, and HAWKINS, Circuit Judges.

1

MEMORANDUM**

2

Louie L. Lopez, a California state prisoner, appeals the district court's order denying reconsideration of his motion for an extension of time to file a notice of appeal. We have jurisdiction pursuant to 28 U.S.C. § 2253. We review for an abuse of discretion the district court's denial of a motion for reconsideration, United States v. Nutri-Cology, Inc., 982 F.2d 394, 397 (9th Cir.1992), and we vacate and remand.

3

The district denied Lopez's notice of appeal as untimely, relying in large part on Miller v. Sumner, 921 F.2d 202 (9th Cir.1990) (notice of appeal dropped in anonymous prison mailbox is filed on date received by court rather than date of mailing; limiting rule of Houston v. Lack, 487 U.S. 266 (1988) to legal mail posted through prison log system).

4

While Lopez's appeal was pending, we held that the amended version of Rule 4(c) of the Federal Rules of Appellate Procedure, effective December 1, 1993, nullifies the distinction we drew in Miller. Koch v. Ricketts, No. 92-16517, slip op. 13645, 13650-51 (9th Cir. Oct. 19, 1995). Under Rule 4(c), an inmate's " 'notice of appeal is timely filed if it is deposited in the institution's internal mail system on or before the last day for filing.' " See Koch, slip op. at 13650 (quoting Fed.R.App.P. 4(c)).

5

Because it appears that Lopez may have filed his notice of appeal timely originally, we vacate the district court's judgment and remand with instructions to determine, in light of Koch and Fed.R.App.P. 4(c), the exact date Lopez deposited his notice of appeal in the institution's internal mail system.

6

VACATED and REMANDED.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4. Both appellee's motion for oral argument and appellant's motion for expansion of the record are denied

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3