                                                                              FILED
                            NOT FOR PUBLICATION                                MAY 19 2015

                                                                           MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


MAXCIUM HERRING,                                  No. 13-56710

               Petitioner - Appellant,            D.C. No. 8:11-cv-00781-DMG

  v.
                                                  MEMORANDUM*
L. S. McEWEN, Warden,

               Respondent - Appellee.


                    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.

          *
             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).
      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.


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