IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
March 1, 2013
UNITED STATES OF AMERICA,
ORDER ADVISING DEFENDANT
OF OPPORTUNITY TO FILE A
MOTION REQUEST THAT THE
TIME FOR FILING A NOTICE
) OF APPEAL BE EXTENDED
On July 9, 2012, petitioner Donald Kapperman ("Petitioner") filed a pleading seeking injunctive and declaratory relief pursuant to Rules 57 and 65 of the Federal Rules of Civil Procedure. Doc. # 940. Petitioner's motion was denied by order of the court on November 13, 2012. Doc. # 941. A motion for reconsideration, which was filed on December 10, 2012, was denied on January 8, 2013. Doc. # 945. On February 1, 2013, Petitioner filed a notice of appeal. On February 28, 2013, the Ninth Circuit held all proceedings in that court in abeyance and remanded the action to this court for the following limited purpose:
Because the notice of appeal was filed more than 14 days after entry of the order [being appealed], it was not timely under Federal Rule of Appellate Procedure 4(b)(1)(A). The notice of appeal, however, was filed within 30 calendar after the expiration of the time to file the notice of appeal. See Fed. R. App. P. 4(b)(4). Accordingly, pursuant to circuit court policy, this case is remanded to the district court for the limited purpose of permitting the district court to provide appellant notice and an opportunity to request that the time for filing the notice of appeal be extended for a period not to exceed 30 calendar days from the expiration of the time prescribed by Rule 4(b), upon on a showing of excusable neglect or good cause.
Doc. # 955.
Pursuant to the Ninth Circuit's order, the court provides Petitioner with notice that his notice of appeal was not timely, but this court can extend the time to appeal based upon a proper showing. In a criminal case, a defendant's notice of appeal must be filed in the district court within ten days after the entry of either the judgment or the order being appealed. See Fed.R.App.P. 4(b)(1)(A). In this case, Petitioner's notice of appeal was filed more than ten days after filing of the order being appealed. However, the district court may extend the time to file a notice of appeal for a period not to exceed thirty days upon a finding of excusable neglect or good cause. See Fed.R.App.P. 4(b)(4). Having advised Petitioner of the court's ability to extend the time in which Petitioner can appeal, Petitioner is given leave to file a motion requesting this court extend the time to file an appeal within ten days of this order's date of service.
Accordingly, the court ORDERS that:
1. Petitioner is ADVISED that he may file a motion to extend the time to file a notice of appeal within ten days of this order's date of service; and
2. The Clerk of the Court is DIRECTED to serve copies of this order on:
The Ninth Circuit Court of Appeals
Peter L. Shaw, Appellate Commissioner Reference to Case 13-10055 Donald Kapperman Reg. No. 07181-014 Federal Corrections Institution P.O. Box 33 ` Terre Haute, Indiana, 47808 IT IS SO ORDERED.
0m8i78 SENIOR DISTRICT JUDGE
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