The opinion of the court was delivered by: Alicemarie H. Stotler United States District Judge
ORDER GRANTING MOTION TO REOPEN TIME TO APPEAL [ECF NO. 491]
PROCEDURAL BACKGROUND On January 17, 2012, Olga Lilia Toscano ("Petitioner") filed a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 ("2255 Motion"). The Court entered an Order Denying Petitioner's 2255 Motion on September 10, 2012. (ECF No. 490.)*fn1 On December 3, 2012, Petitioner filed a notice of appeal of the September 10, 2012 Order and requested a certificate of appealability. (ECF No. 491.) The Court denied Petitioner's request for a certificate of appealability on January 11, 2013. (ECF No. 495.) On January 25, 2013, the United States Court of Appeals for the Ninth Circuit issued an order remanding Petitioner's case with instructions to construe the notice of appeal as a motion to reopen time to appeal pursuant to Federal Rule of Appellate Procedure 4(a)(6) ("Rule 4(a)(6)"), in accordance with the holding of United States v. Withers, 638 F.3d 1055, 1061 (9th Cir. 2011). Petitioner's case was remanded to this Court for the limited purpose of determining whether Petitioner's Motion to Reopen Time to Appeal*fn2 was timely, and, if so, whether it should be granted.*fn3
The Court finds Petitioner's Motion was timely and grants her request to reopen time to appeal.
Petitioner is currently incarcerated at the Federal Correctional Institution in Dublin, California ("FCI Dublin"). (See Pet'r's Mot., ECF No. 491.) According to Petitioner, she had been temporarily relocated to a different facility to provide testimony for the State of California in a state proceeding and was "just recently" returned to FCI Dublin. Petitioner claims that during her time away from FCI Dublin her mail was not being forwarded (or there was a delay in forwarding it) and she did not have access to her legal documents or personal belongings. As of the date of Petitioner's Motion, November 29, 2012, she "had just been returned" to FCI Dublin and up to that point she was not aware of the September 10, 2012 Order denying her 2255 Motion.
A party may move the district court to reopen time to appeal within 180 days after the entry of the judgment or order sought to be appealed or within 14 days after the moving party receives notice of the entry, whichever is earlier. Fed. R. App. P. 4(a)(6)(B). Given Petitioner's representation that she did not receive notice of the September 10, 2012 Order until approximately November 29, 2012, her Motion, filed 4 days later on December 3, 2012, was timely filed within the 14-day period required by Rule 4(a)(6).
A motion to reopen time to appeal may be granted if the moving party did not receive notice of the order within 21 days after entry and no party would be prejudiced by reopening time. Fed. R. App. P. 4(a)(6). On the strength of Petitioner's unchallenged assertion that she did not receive notice of the September 10, 2012 Order until she was returned to FCI Dublin on or about November 29, 2012, the Court finds that Petitioner did not receive notice of the Order within 21 days after it was entered.
The Court also finds that no party will be prejudiced by reopening Petitioner's time to appeal. "Prejudice," for the purpose of a motion to reopen time under Rule 4(a)(6), requires some special adverse consequence to the opposing party beyond the cost and risk inherently involved in opposing an appeal. See Fed. R. App. P. 4(a)(6) advisory committee's note. Reopening Petitioner's time to appeal will not result in any special adverse consequence to the Government other than the cost and risk involved in defending the appeal. The Court finds that the Government will not be prejudiced by reopening Petitioner's time to appeal within the meaning of Rule 4(a)(6).
CONCLUSION For the foregoing reasons, the Court finds that Petitioner has met the conditions under Rule 4(a)(6) and grants Petitioner's Motion to Reopen Time to Appeal. Pursuant to the January 25, 2013 remand order, Petitioner does not need to file a new notice of appeal. The briefing schedule will be set by the Court of Appeals.
IT IS SO ORDERED. It is further ordered that the Clerk shall serve a copy of this Order on counsel for all parties and on Petitioner at her last known address and provide a copy to the ...