Opinion
No. 2:12-cr-00144-TLN
09-01-2015
UNITED STATES OF AMERICA, Plaintiff, v. TERRYLYN MCCAIN, Defendant.
ORDER
On July 14, 2015, Defendant/Appellant Terrylyn McCain ("McCain") filed a notice of appeal from the district court's judgment entered on June 4, 2015, pursuant to Federal Rule of Appellate Procedure 4(c)(1). Because the notice of appeal was filed more than 14 days after entry of judgment, it was not timely under Federal Rule of Appellate Procedure 4(b)(1)(A). However, the notice of appeal was filed within 30 days after the expiration of the time to file the notice of appeal. See Fed. R. App. P. 4(b)(4). Thus, this case was remanded to the undersigned for the limited purpose of permitting the district court to provide McCain notice and an opportunity to request that the time for filing the notice of appeal be extended, for a period not to exceed 30 days from the expiration of the time prescribed by Rule 4(b), upon a finding of excusable neglect or good cause. See Fed. R. App. P. 4(b)(4); United States v. Ono, 72 F.3d 101, 103 (9th Cir. 1995) (order); United States v. Stolarz, 547 F.2d 108 (9th Cir. 1976).
On August 31, 2015, McCain filed a request that the time for filing be extended. McCain alleges she asked her appointed counsel to file an appeal on her behalf at the time of her sentencing. (ECF No. 233.) McCain states that she did not learn of appointed counsel's failure to do so until July 14, 2015, which caused her to miss the fourteen (14) day deadline. Id. McCain states that "at all time[s], [she] intended to preserve and protect her appellate rights." Id. Thus, this Court finds that good cause exists and hereby extends the time period to file an appeal pursuant to Federal Rule of Appellate Procedure 4(b)(4). The Clerk of Court is directed to send a copy of this order to the Ninth Circuit and to serve this order on McCain at Reg. No. 81618-053, Federal Correctional Institution, P.O. Box 3850, Adelanto, California 92301.
IT IS SO ORDERED. Dated: September 1, 2015
/s/_________
Troy L. Nunley
United States District Judge