Unpublished Disposition, 865 F.2d 266 (9th Cir. 1987)

Darrell Vincent White appeals pro se from two district court orders (1) denying his petition for a writ of habeas corpus and (2) denying his motion for relief from the judgment. We reverse and remand this case to the district court.

FACTS

In 1981, a jury in California convicted White of rape, oral copulation, attempted rape, four counts of kidnaping, and assault with a deadly weapon. The convictions stemmed from two separate incidents. The jury found that, on February 14, 1981, White forcibly took two girls to a deserted park and raped one of them. The jury also found that, on February 28, 1981, White attempted to rape a woman after kidnaping her and her ten year old child. In addition to the jury convictions, White pleaded guilty to committing first degree burglary in the February 28 incident.

On July 8, 1983, the California Court of Appeals affirmed the convictions but remanded the case to the Superior Court for resentencing. On December 12, 1983, the Superior Court sentenced White to nineteen years imprisonment.

In 1983, and again in 1984, White filed petitions for habeas corpus relief in federal district court. The district court dismissed these petitions because White had not exhausted state remedies. After exhausting state remedies, White again filed a petition for habeas corpus relief in federal district court in 1986. The district court granted White's request to proceed in forma pauperis and ordered the State of California to file copies of White's trial transcripts. The state complied with the district court's order.

White's petition for habeas corpus relief contended that his 1981 convictions were unconstitutional because his attorney provided ineffective assistance, the prosecutor committed misconduct, and the trial court improperly denied a motion for a mistrial based on juror misconduct. On December 8, 1986, a federal magistrate recommended that the district court deny White's petition. The magistrate's recommendation also informed White that (1) " [w]ithin thirty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties" and (2) "failure to contest any findings of fact herein will waive the right to contest them on appeal." The record indicates that White's objections should have been filed in the district court by January 12, 1987.

On January 13, 1987, the district court denied White's petition for a writ of habeas corpus. The court's order noted that neither party had filed objections to the magistrate's findings and recommendations. The next day, January 14, 1987, the district court received objections from White.

More than five months later, on June 22, 1987, White filed a motion asking the district court to reconsider its order denying his petition for habeas relief. White's motion contended that the district court's decision was erroneous because the court had not considered his objections to the magistrate's findings and recommendations. White explained that he filed his objections late because he misunderstood the procedure for objecting to the magistrate's findings and recommendations. He was under the mistaken impression that the state had not yet filed his trial transcript with the district court and, apparently, believed that he could not object to the magistrate's ruling until this was done. White also stated that his objections arrived two days late because the prison mail system failed to deliver them promptly.

The district court construed White's motion as a request for relief from the judgment under Fed. R. Civ. P. 60(b). On August 12, 1987, the district court denied the motion. White appealed on August 31, 1987.

ANALYSIS

We first note that this court lacks jurisdiction to review the district court's order denying White's petition for habeas corpus relief. That order was entered on January 14, 1987 and should have been appealed within thirty days. See Pettibone v. Cupp, 666 F.2d 333, 334 (9th Cir. 1981) (a habeas corpus action is a civil matter subject to the requirements of Fed. R. App. P. 4(a)). White failed to do this. In fact, White did not file any document with the court until June 22, 1987 when he filed his motion for reconsideration. Therefore, we lack jurisdiction to review the order denying White's petition for a writ of habeas corpus. See Id. (the thirty day time limit of Fed. R. App. P. 4(a) is mandatory and jurisdictional).

However, this court can review the district court's order denying White's post-judgment motion under Fed. R. Civ. P. 60(b). The district court denied the motion on August 12, 1987 and White timely appealed the decision nineteen days later on August 31, 1987. See Browder v. Director, Dept. of Corrections, 434 U.S. 257, 263 n. 7 (1978) (an appeal from a ruling on a Fed. R. Civ. P. 60(b) motion is subject to the thirty day time period in Fed. R. App. P. 4(a)). We review the district court's order denying White's Rule 60(b) motion for an abuse of discretion. Swimmer v. IRS, 811 F.2d 1343, 1345 (9th Cir. 1987).

Federal Rule of Civil Procedure 60(b) allows a party to request relief from a judgment because of mistake, inadvertence, or excusable neglect. White contends that he filed late objections because (1) he misunderstood the procedure for objecting to the magistrate's ruling and (2) his prison's mailing system delayed the filing. White's first reason for relief from the judgment is meritless. Ignorance of court rules or procedure is not excusable, even if a litigant appears pro se. See Swimmer, 811 F.2d at 1345.

White's assertion that the mailing procedures at his prison delayed the filing of the objections may be meritorious. The district court's order denying White's post-judgment motion does not discuss this contention. However, a late filing may be excused under Fed. R. Civ. P. 60(b) when a prisoner does all that he can under the circumstances to meet a deadline. See United States v. Houser, 804 F.2d 565, 569 (9th Cir. 1986); see also Houston v. Lack, 108 S. Ct. 2379, 2385 (1988) (prisoner timely filed notice of appeal by delivering it to prison mail system). White dated his objections on January 8, 1987. The objections were due four days later on January 12, but did not arrive at the district court until January 14, 1987. In reviewing the record, we cannot tell whether White did all he could to file his objections on time. Accordingly, we reverse and remand this case to the district court and instruct it to determine whether White filed his objections late because of excusable neglect.

REVERSED AND REMANDED.