Roosevelt Miller v. George Sumner, Director Nevada Department of Prisons State Attorney General of Nevada

The notice of appeal in this action was filed by Roosevelt Miller, a Nevada state prisoner, more than thirty days after entry of the order appealed from. It was therefore untimely under Fed.R.App.P. 4(a)(1). However, because notices of appeal by pro se prisoners are deemed filed when delivered to prison authorities for forwarding to the court under Houston v. Lack, 487 U.S. 266 , 108 S.Ct. 2379 , 101 L.Ed.2d 245 (1988), we remanded for the district court to determine whether Miller delivered his notice within the applicable period. Miller v. Sumner, 872 F.2d 287 (9th Cir.1989). The district court found that he had, based on declarations by Miller and another prisoner indicating that the notice had been timeously put in a mailbox at the prison facility. We disagree that evidence of mailing by deposit in a regular mailbox, instead of through the prison mail log system, suffices, and dismiss the appeal.

I

On remand, the evidence considered by the district court was entirely documentary. Miller filed a petition for writ of habe-as corpus with the United States District Court for the District of Nevada on February 20, 1987. The district court’s order denying the petition was entered…