Unpublished Disposition, 940 F.2d 1535 (9th Cir. 1989)

No. 90-35031.

United States Court of Appeals, Ninth Circuit.

Before EUGENE A. WRIGHT, BEEZER and WIGGINS, Circuit Judges

MEMORANDUM^** 

Bernard Pease, Jr., a prisoner in the Montana State Prison, appeals the denial of his habeas corpus petition. Because the appeal was not timely filed, this court does not have jurisdiction to hear the case.

Under Fed. R. App. P. 4(a) (1), a notice of appeal in a civil action, including a petition for habeas corpus, must be filed within thirty days of entry of the judgment. In this case, denial of the petition was entered on September 8, 1989. The notice of appeal was not filed until October 10, 1989.

The exception which allows the deadline for a pro se prisoner to be met by the date when the prisoner delivers the appeal to prison authorities for mailing, see Miller v. Sumner, 921 F.2d 202, 203 (9th Cir. 1990), does not help Pease. Although we have no reason to question Pease's statements that he left the notice of appeal in his food hatch for mailing on the evening of October 4, 1989, Miller emphasizes that use of the regular mails is not adequate. If a prisoner desires to rely on the exception, the prisoner must deliver the notice to the prison authorities who will make a record of the date of its receipt that can then be verified by the district court. Id. We pointed out in Miller that, " [t]his is the only way to avoid uncertainty and chicanery." Id. at 204.

As in Miller, the Montana State Prison does not keep a log of the regular mails, but does record any special mailings (certified, insured etc.), including any requests that the date of the mailing be recorded. Pease should have used the special mailing system if he hoped to rely on the pro se prisoner exception in meeting the deadline for filing a notice of appeal. Pease used the special mailing system in June, 1989, but not in September or October. Therefore, the district court found that his notice was not timely filed.

We lack jurisdiction to hear the petition for habeas corpus. Therefore, we dismiss the appeal.