Louie L. Lopez, Petitioner-appellant, v. Charles D. Marshall; Attorney General of the State Ofcalifornia, Respondents-appellees.louie L. Lopez, Petitioner-appellant, v. Charles D. Marshall; Attorney General of the State Ofcalifornia, Respondents-appellees, 76 F.3d 387 (9th Cir. 1995)

MEMORANDUM^** 

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.

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).

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)).

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.

VACATED and REMANDED.