Unpublished Dispositionunited States of America, Plaintiff-appellant, v. Gary Gallo, Defendant-appellee, 812 F.2d 1409 (6th Cir. 1987)

ORDER

The defendant is attempting to appeal his conviction, based upon a guilty plea, for conspiracy to distribute heroin in violation of 21 U.S.C. § 846. The government now moves for dismissal of the appeal on grounds the defendant's notice of appeal was filed untimely. The defendant has responded by admitting the untimeliness of his notice of appeal, but declining to draw a legal conclusion therefrom. Although granted an extension of time to file a more thorough response, appointed counsel has not filed any further papers.

Pursuant to a plea bargain, the defendant entered a guilty plea to the above offense on November 7, 1984. He was sentenced on February 7, 1985, to a term of six years imprisonment. Ten months later, on December 12, 1985, the defendant submitted to the district court a pro se document entitled "Petition for Review: Title 5 Administrative Procedure Act, 702, 706-(2) A-B-C-D". The district court construed that document as a notice of appeal.

Under the provisions of Rule 4(b), Federal Rules of Appellate Procedure, the defendant in a criminal proceeding has 10 days from the entry of judgment in which to file his notice of appeal. That requirement is mandatory and jurisdictional. United States v. Robinson, 361 U.S. 220, 229 (1960); United States v. Avendano-Camacho, 786 F.2d 1392, 1394 (9th Cir. 1986). The notice of appeal filed on December 12, 1985, did not invest this Court with appellate jurisdiction. To the extent the defendant now seeks to attack the validity of his conviction, he must now use 28 U.S.C. § 2255 rather than a direct appeal.

It is ORDERED that the motion to dismiss is granted.