Unpublished Disposition, 914 F.2d 262 (9th Cir. 1990)

MEMORANDUM^** 

Jimmy Haul, a California state prisoner confined in Atascadero State Hospital, appeals pro se the district court's denial of his 28 U.S.C. § 2254 habeas corpus petition. Haul was convicted in a California state court of three counts of robbery, one count of burglary, and one count of mayhem. After exhausting his state court remedies, Haul 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. Haul appeals.

Although neither party raised the issue of whether we have jurisdiction over this appeal, we must address the question sua sponte. United Artists Corp. v. La Cage Aux Folles, Inc., 771 F.2d 1265, 1267 (9th Cir. 1985). The district court entered judgment on April 25, 1989. Pursuant to Federal Rule of Appellate Procedure 4(a) (1), Haul had 30 days from April 25, 1989, to file his notice of appeal. The thirty-day time limit is jurisdictional. Miller v. Sumner, 872 F.2d 287, 288 (9th Cir. 1989), dismissed after remand, No. 88-1798, slip op. at 8509 (9th Cir. Aug. 8, 1990). We have jurisdiction if Haul's notice of appeal was filed on or before May 25, 1989.

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, 487 U.S. 266, 270-72 (1988); Miller, 872 F.2d at 288. For the exception to filing requirements for pro se prisoner appeals to apply, the notice must be posted through the prison log system, not dropped in a prison facility mailbox. See Miller, No. 88-1798, slip op. at 8513. We are unable to determine from the record before us whether Haul's notice of appeal was delivered to prison authorities on or before May 25, 1989, or dropped in a prison facility mailbox. Haul signed and dated his notice of appeal on May 25, 1989, the deadline for filing the notice. The notice of appeal was not received and filed in the district court, however, until May 30, 1989.

Accordingly, we remand this case to the district court to determine the date Haul delivered his notice of appeal to prison authorities or whether he merely dropped it in the prison facility mailbox on the date of the deadline. If Haul delivered his notice of appeal to prison authorities prior to or on May 25, 1989, the district court is directed to issue a certificate of probable cause pursuant to Fed. R. App. P. 22(b). Miller, 872 F.2d at 289.¹ 

REMANDED.