Unpublished Dispositionkenneth O. Pollard, Petitioner-appellant, v. Bill Story, Warden and United States Parole Commission,respondents-appellees, 843 F.2d 1392 (6th Cir. 1988)

Before LIVELY, Chief Judge, RALPH B. GUY, Jr., Circuit Judge, and AVERN COHN, District Judge.^* 

ORDER

This court entered an order on February 1, 1988, directing the appellant to show cause within 21 days why his appeal should not be dismissed for lack of jurisdiction. No response was filed.

It appears from the record that on October 31, 1983, the parties stipulated that the magistrate conduct all proceedings and enter a final judgment of the district court in the case pursuant to 28 U.S.C. § 636(c) (1) and (2). A judgment was entered June 7, 1985, directing that the Parole Commission grant appellant a new parole hearing and giving the Commission specific directions in computing the salient factor and in considering appellant's past conduct. Appellant filed a motion to enforce the judgment on July 15, 1985, and on July 17, 1985, the appellees sought an order stating that they had complied with the June 7 order. After receiving responses to the motions and holding a hearing, the magistrate denied the motion to enforce the judgment and directed that the Parole Commission conduct a de novo hearing no later than November 1, 1985. That motion was denied on September 18, 1985, and a de novo hearing was directed to be held by the Parole Commission at the Federal Correctional Institution in Petersburg on the next regularly scheduled hearing date. Appellant filed a notice of appeal on December 14, 1987, because the magistrate declined to alter his June 7, 1985, judgment. The December 14, 1987, notice of appeal was not filed within 30 days as prescribed by Fed. R. App. P. 4(a) (1) and computed by Fed. R. App. P. 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.

Accordingly, it is ORDERED that the appeal be and hereby is dismissed for lack of jurisdiction. Rule 9(b) (1), Rules of the Sixth Circuit.