Unpublished Dispositiongeorge Casey, Plaintiff-appellant, v. United States of America, Defendant-appellee, 815 F.2d 76 (6th Cir. 1987)

ORDER

This matter is before the Court upon consideration of appellee's motion to dismiss and appellant's response to this Court's show cause order as to why the appeal should not be dismissed for lack of jurisdiction because of a late filed notice of appeal.

It appears from the record that appellant filed a motion pursuant to 28 U.S.C. § 2255 to reduce his sentence. The district court in an order of July 16, 1986 construed the petition as being pursuant to Rule 35(b), Federal Rules of Civil Procedure. The notice of appeal was filed on October 14, 1986.

If the appeal is construed as being from denial of a Rule 35 motion and thus a criminal proceeding, the notice of appeal is 71 days late. Rule 4(b), Federal Rules of Appellate Procedure; United States v. Willis, 804 F.2d 961, 962 (6th Cir. 1986). However, if the appeal is construed as being from a civil proceeding pursuant to Sec. 2255, the notice of appeal was 30 days late. Rule 4(a), Federal Rules of Appellate Procedure; Myers v. Ace Hardware, Inc., 777 F.2d 1099, 1102 (6th Cir. 1985). Under either construction, the notice of appeal is late, and the Court is without jurisdiction to entertain the appeal.

It is ORDERED that the appeal be and hereby is dismissed for lack of jurisdiction.