court judgment.⁶ Although the district court denied the motion, Andrade asserts that his motion for extension of time was the functional equivalent of a notice of appeal. We agree.

We have previously held that a motion for extension of time may not be construed as a notice of appeal. Selph v. Council of City of Los Angeles, 593 F.2d 881, 883 (9th Cir. 1979), overruled on other grounds by United Artists Corp. v. La Cage Aux Folles, Inc., 771 F.2d 1265 (9th Cir. 1985). In so deciding, we distinguished the case from "those few criminal appeals or collateral attacks on criminal convictions . . . in which extraordinary relief has been granted." Id. (citing United States v. Hoye, 548 F.2d 1271, 1273 (6th Cir. 1977) (treating a motion for enlargement of time containing "most of the essential facts required of a notice of appeal" as a timely notice of appeal)). The present appeal is distinguishable from Selph in two ways: (1) unlike the appellants in Selph, Andrade was proceeding pro se at the time he filed his motion for extension of time; and (2) Andrade's suit is a collateral attack on his criminal conviction.

More importantly, we must reexamine our holding in Selph in light of the Supreme Court's decision in Smith v. Barry, 502 U.S. 244 (1992). In Smith, the Supreme Court held that a document intended to serve as an appellate brief may qualify as the notice of appeal required by Rule 3. Id. at 248-49. The Court stated:

⁶In its order denying Andrade's request for an extension of time, the district court mistakenly used March 25, 1999 as the date Andrade filed his motion. The clerk's stamp on Andrade's motion indicates that the district court received his motion on March 18. Moreover, a notice of appeal by an inmate confined in an institution will be considered timely if it is deposited in the institution's internal mail system with proper postage on or before the last day of filing. Fed. R. App. P. 4(c)(1); see also Houston v. Lack, 487 U.S. 266, 276 (1988). Andrade's supporting declaration indicates that he accomplished this task on March 17.

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