USCA4 Appeal: 22-7340 Doc: 9 Filed: 08/31/2023 Pg: 1 of 3

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-7340

JOHN W. MCKENZIE,

Petitioner - Appellant,

v.

R. WOLFE, Warden,

Respondent - Appellee.

Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. John Preston Bailey, District Judge. (5:22-cv-00123-JPB)

Submitted: August 29, 2023 Decided: August 31, 2023

Before KING, AGEE, and BENJAMIN, Circuit Judges.

Remanded by unpublished per curiam opinion.

John W. McKenzie, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 22-7340 Doc: 9 Filed: 08/31/2023 Pg: 2 of 3

PER CURIAM:

John W. McKenzie seeks to appeal the district court’s order denying relief on his

petition. When the United States or its officer or agency is a party in a

civil case, parties are accorded 60 days after the entry of the district court’s final judgment

or order to note an appeal, Fed. R. App. P. 4(a)(1)(B), unless the district court extends the

appeal period under Fed. R. App. P. 4(a)(5), or reopens the appeal period under Fed. R.

App. P. 4(a)(6). However, if a party moves for an extension of time to appeal within 30

days after expiration of the original appeal period and demonstrates excusable neglect or

good cause, a district court may extend the time to file a notice of appeal. Fed. R.

App. P. 4(a)(5)(A); Washington v. Bumgarner,

(4th Cir. 1989). The

district court may also reopen the time to file an appeal if the moving party did not receive

notice of the entry of the order sought to be appealed within 21 days after entry, the motion

is filed within the earlier of either 180 days after the order is entered or 14 days after the

moving party receives notice under Fed. R. App. P. 77(d) of the entry, and no party would

be prejudiced. Fed. R. App. P. 4(a)(6).

The district court entered its order on September 1, 2022, and McKenzie did not file

his notice of appeal until November 18, 2022. * However, because McKenzie’s notice of

appeal included a manifest request for additional time to appeal and stated that he did not

receive timely notice of the entry of the district court’s order, we construe it as a request

* McKenzie’s notice of appeal did not contain any indication of the date it was mailed. Fed. R. App. P. 4(c)(1); Houston v. Lack,

(1988).

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for an extension of time under Fed. R. App. P. 4(a)(5) or for a reopening of the appeal

period under Fed. R. App. P. 4(a)(6).

Accordingly, we remand this case to the district court for the limited purpose of

determining whether McKenzie is entitled to an extension or a reopening of the appeal

period. The record, as supplemented, will be returned to this court for further

consideration.

REMANDED

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