899 F.2d 14: Unpublished Dispositionjesse O. Gray, Plaintiff-appellant, v. James R. Neuhard, Appellate Court Defender; Conrad Sindt,calhoun County Prosecutor; Robert Axford,chairman Michigan Correctionscommission, Defendants-appellees
United States Court of Appeals, Sixth Circuit. - 899 F.2d 14
April 4, 1990
Before KRUPANSKY and MILBURN, Circuit Judges, and WILLIAM K. THOMAS, Senior District Judge*.
This court entered an order on February 7, 1990, directing the appellant to show cause within twenty-one days why the appeal should not be dismissed for lack of jurisdiction because of a late notice of appeal. Appellant has failed to respond. He has filed a motion for bail pending appeal to which the appellee has responded.
It appears from the record that the final judgment was entered October 30, 1989. The notice of appeal filed on December 4, 4989, was five 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. Baker v. Raulie, 879 F.2d 1396, 1398 (6th Cir.1989) (per curiam); McMillan v. Barksdale, 823 F.2d 981, 982 (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, 41 (6th Cir.1984) (per curiam); Peake v. First Nat'l Bank & Trust Co., 717 F.2d 1016, 1018 (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 it hereby is, dismissed for lack of jurisdiction. Rule 9(b)(1), Rules of the Sixth Circuit. The motion for bail is denied.