Unpublished Dispositionsamuel T. Weaver, Petitioner-appellant, v. Terry L. Morris; George F. Denton, Respondents-appellees, 838 F.2d 1216 (6th Cir. 1988)

ORDER

This matter is before the court upon consideration of the appellees' motion to dismiss the appeal. Appellant's response was filed by this court as a response to the motion to dismiss and as a response to this court's order directing him to show cause why his appeal should not be dismissed for lack of jurisdiction. Appellant's response states that he placed his notice of appeal in the Southern Ohio Correctional Facility's mailbox prior to the expiration of the appeals period. Appellant has also filed a motion for appointment of counsel.

It appears from the record that the judgment was entered July 10, 1987. The notice of appeal filed on August 12, 1987, was 2 days late. Fed. R. App. P. 4(a) and 26(a).

The failure of an appellant to timely file a notice of appeal deprives an appellate court of jurisdiction. Compliance with Fed. R. App. P. 4(a) is a mandatory and jurisdictional prerequisite which this court can neither waive nor extend. McMillan v. Barksdale, 823 F.2d 981 (6th Cir. 1987); Myers v. Ace Hardware, Inc., 777 F.2d 1099, 1102 (6th Cir. 1985); Denley v. Shearson/American Express, Inc., 733 F.2d 39 (6th Cir. 1984) (per curiam); Peake v. First Nat'l Bank & Trust Co., 717 F.2d 1016 (6th Cir. 1983). Fed. R. App. P. 26(b) specifically provides that this court cannot enlarge the time for filing a notice of appeal. Although appellant states he mailed the notice of appeal prior to the expiration of the appeals period, it is the date the notice of appeal is received in the district court which confers jurisdiction on this court. Torras Herreria v. M/V Timur Star, 803 F.2d 215 (6th Cir. 1986); Haney v. Mizell Memorial Hosp., 744 F.2d 1467 (11th Cir. 1984); Pryor v. Marshall, 711 F.2d 63 (6th Cir. 1983).

It is ORDERED that the motion for appointment of counsel be denied, the motion to dismiss be granted and the appeal be and hereby is dismissed. Rule 8, Rules of the Sixth Circuit.