USA v. Edward McElroy
| EDWARD ALLEN MCELROY |
| UNITED STATES OF AMERICA |
| 21-35382 |
| May 18, 2021 |
| U.S. Court of Appeals, Ninth Circuit |
| Other |
Docket Report
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| Filing 6 Filed clerk order (Deputy Clerk: JW): Appellants motion for an extension of time (Docket Entry No. [ # 5 ] ) to file a request for a certificate of appealability (COA) is granted. Any request for a COA is due by August 9, 2021.[12167891] (JPD) [Entered: 07/09/2021 10:18 AM] |
| Filing 5 Filed Appellant Edward Allen McElroy motion to extend time to file COA request. Deficiencies: None [12158504] (NAC) [Entered: 06/29/2021 10:01 PM] |
| Filing 4 Filed Appellant Edward Allen McElroy motion to appoint counsel. Deficiencies: None. [12144660] (NAC) [Entered: 06/15/2021 12:04 PM] |
| Filing 3 Received copy of District Court order filed on 06/02/2021. Certificate of Appealability Denied as to Edward Allen McElroy regarding Order on Motion for Reconsideration. [12131383] (NAC) [Entered: 06/02/2021 01:55 PM] |
| Filing 2 Filed order (Interim Appellate Commissioner): On July 24, 2020, the district court denied appellants 28 U.S.C. 2255 motion and entered judgment in this case. On August 28, 2020, appellant filed a motion for reconsideration, which the district court denied on October 30, 2020. Appellants notice of appeal, served on May 10, 2021 and filed in the district court on May 17, 2021, was not filed within 60 days after entry of the July 24, 2020 order and judgment or the district courts October 30, 2020 order. See 28 U.S.C. 2107(b); Fed. R. App. P. 4(a)(1)(B); United States v. Sadler, 480 F.3d 932, 937 (9th Cir. 2007) (requirement of timely notice of appeal is jurisdictional). The scope of this appeal is therefore limited to the district courts March 5, 2021 post-judgment order denying appellants November 9, 2020 motion for relief from judgment, and the April 9, 2021 post-judgment order denying appellants March 30, 2021 motion for reconsideration. See Fed. R. App. P. 4(a)(4); Swimmer v. Internal Revenue Service, 811 F.2d 1343 (9th Cir. 1987) (second motion for reconsideration does not toll time to appeal underlying judgment); Fiester v. Turner, 783 F.2d 1474 (9th Cir. 1986) (untimely motion does not suspend time to appeal). The district court denied a certificate of appealability with respect to the judgment entered on July 24, 2020, but has not yet issued or declined to issue a certificate of appealability with respect to the post-judgment orders entered on March 5, 2021 and April 9, 2021. This case is remanded for the limited purpose of allowing the district court to grant or deny a certificate of appealability as to those orders, at the courts earliest convenience. See Fed. R. App. P. 22(b); 28 U.S.C. 2253(c); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997); United States v. Winkles, 795 F.3d 1134, 1142 (9th Cir. 2015) (certificate of appealability required to appeal denial of Rule 60(b) motion arising out of denial of section 2255 motion). If the district court chooses to issue a certificate of appealability, the court should specify the issues that meet the required showing; if the district court declines to issue a certificate, the court is requested to state its reasons. See 28 U.S.C. 2253(c)(3); Asrar, 116 F.3d at 1270. The Clerk will send a copy of this order to the district court. (Pro Se) [12124691] (CKP) [Entered: 05/26/2021 07:04 AM] |
| Filing 1 Open 9th Circuit docket: needs certificate of appealability. Date COA denied in DC: 07/24/2020. Record on appeal included: Yes. [12116614] (JMR) [Entered: 05/18/2021 12:02 PM] |
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| Defendant / appellant: EDWARD ALLEN MCELROY | |
| Represented By: | Edward Allen McElroy |
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| Plaintiff / appellee: UNITED STATES OF AMERICA | |
| Represented By: | Paul T. Maloney |
| Represented By: | Gary Y. Sussman |
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