Maxcium Herring v. L. S. McEWEN, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MAXCIUM HERRING,
Petitioner - Appellant,
v.
L. S. McEWEN, Warden,
Respondent - Appellee.
No. 13-56710
D.C. No. 8:11-cv-00781-DMG
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding
Submitted May 13, 2015**
Before: LEAVY, CALLAHAN, and M. SMITH, Circuit Judges.
Maxcium Herring, a California state prisoner, appeals pro se from the
district court’s denial of his motion to reopen the time to file a notice of appeal
pursuant to Federal Rule of Appellate Procedure 4(a)(6). We have jurisdiction
under 28 U.S.C. § 1291. We vacate and remand.
FILED
MAY 19 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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The district court abused its discretion by relying on the purported lack of
merit in Herring’s underlying appeal to deny Herring’s Rule 4(a)(6) motion. See
Arai v. Am. Bryce Ranches Inc., 316 F.3d 1066, 1071 (9th Cir. 2003) (“the merits
of the potential appeal are not a permissible consideration” in ruling on a Rule
4(a)(6) motion). The district court further erred by relying, in part, on the
“prejudice” the respondent would suffer by having to continue to litigate this case.
See Fed. R. App. P. 4(a)(6) advisory committee’s note to 1991 amendment (“By
‘prejudice’ the Committee means some adverse consequence other than the cost of
having to oppose the appeal and encounter the risk of reversal, consequences that
are present in every appeal.”). Accordingly, we vacate the district court’s order
denying Herring’s Rule 4(a)(6) motion and remand on an open record for the
district court to determine whether respondent has suffered any prejudice
cognizable under Rule 4(a)(6) and whether Herring’s Rule 4(a)(6) motion should
be granted. See Arai, 316 F.3d at 1069 (“[T]he district court has the discretion to
deny a Rule 4(a)(6) motion even when the rule’s requirements are met.”).
Because Herring has not been granted Rule 4(a)(6) relief, his challenges to
the denial of his Federal Rule of Civil Procedure 60(b) motion are not properly
before this court.
VACATED and REMANDED.
13-56710 2

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