Unpublished Dispositionarthur Perry, Petitioner-appellant, v. Dale E. Foltz, Respondent-appellee, 848 F.2d 193 (6th Cir. 1988)

ORDER

This matter is before the court upon consideration of appellant's response to this court's January 29, 1987, order directing him to show cause why his appeal should not be dismissed for lack of jurisdiction. Appellant's response states that he has exhausted state court remedies before filing the present appeal.

It appears from the district court's record and this court's file that the final order denying appellant's petition for a writ of habeas corpus was entered November 3, 1986. Appellant filed a notice of appeal from that order on November 10, 1986, docketed in this court as appeal no. 86-2058. Pursuant to appellant's motion, appeal no. 86-2058 was voluntarily dismissed by an order of this court entered February 17, 1987. Appellant filed his second notice of appeal, docketed as appeal no. 87-1845 on August 19, 1987, after allegedly exhausting his state court remedies. The notice of appeal filed August 19, 1987 was 259 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.

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.