Unpublished Disposition, 879 F.2d 865 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 879 F.2d 865 (9th Cir. 1989)

Allen Lynn LODGE, Petitioner-Appellant,v.Robert G. BORG, Warden, Folsom Prison, Respondent-Appellee.

No. 88-5886.

United States Court of Appeals, Ninth Circuit.

Submitted*  April 19, 1989.Decided July 13, 1989.

Before CHOY, ALARCON and CANBY, Circuit Judges.


MEMORANDUM** 

Allen Lynn Lodge, a state prisoner, appeals pro se the district court's denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1982). Lodge was convicted in a California state court of seven counts of robbery, three counts of burglary, five counts of assault by means of force likely to produce great bodily injury, two counts of oral copulation, one count of rape, and two counts of grand theft. After exhausting his state court remedies, Lodge filed a petition in federal district court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court denied his petition and issued a certificate of probable cause. Lodge appeals.

As an initial matter, we must decide whether Lodge's notice of appeal was filed timely. The district court entered judgment on January 11, 1988. Pursuant to Federal Rule of Appellate Procedure 4(a) (1) Lodge had 30 days from January 11, 1988, to file his notice of appeal. The thirty day time limit is jurisdictional. Miller v. Sumner, No. 88-1798, slip op. at 2695 (9th Cir. Mar. 22, 1989). We have jurisdiction if Lodge's notice of appeal was filed prior to February 10, 1988.

A notice of appeal filed by a pro se prisoner is deemed filed when it is delivered to prison authorities for forwarding to the district court. Houston v. Lack, 108 S. Ct. 2379, 2382 (1988); Miller, slip op. at 2695. We are unable to determine from the record before us whether Lodge's notice of appeal was delivered to the prison authorities prior to February 10, 1988. Lodge signed and dated his notice of appeal on February 9, 1988, one day prior to the deadline. However, the notice of appeal was not filed in the district court until February 16, 1988.

Accordingly, we remand this case to the district court to determine the date that Lodge delivered his notice of appeal to prison authorities. If Lodge delivered the notice of appeal to prison authorities prior to February 10, 1988, the district court is directed to issue a certificate of probable cause pursuant to Federal Rule of Appellate Procedure 22(b). Miller, slip op. at 2696.

REMANDED.

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The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument pursuant to Fed. R. App. P. 34(a), Ninth Circuit Rule 34-4

 **

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