Unpublished Dispositionunited States of America, Plaintiff-appellee, v. Kenneth Henderson, Defendant-appellant, 915 F.2d 1573 (6th Cir. 1990)

Before DAVID A. NELSON and ALAN E. NORRIS, Circuit Judges, and GEORGE CLIFTON EDWARDS, Jr., Senior Curcuit Judge.

ORDER

This matter is before the Court for consideration of this court's order of September 5, 1990, directing the defendant to show cause why his appeal should not be dismissed for lack of jurisdiction. The defendant has not filed a response.

Defendant appeals his conviction for distribution of cocaine, aiding and abetting, and conspiracy to distribute cocaine. For purposes of 28 U.S.C. 1291, the final judgment was entered on February 16, 1990 when the judgment and conviction order was entered on the district court's docket sheet. Defendant, through counsel, filed a timely notice of appeal on February 16, 1990 in case number 90-1252. Defendant filed a pro se notice of appeal in this case on July 6, 1990.

Pursuant to the provisions of Rule 4(b), Fed. R. Civ. P. the defendant had ten (10) days from the entry of judgment, i.e., until February 26, 1990 in which to file his notice of appeal. The notice of appeal filed on July 6, 1990 was not within that time period.

Timely filing of a notice of appeal is a mandatory and jurisdictional prerequisite which this Court can neither waive or extend. Browder v. Director, Department of Corrections of Illinois, 434 U.S. 257, 264 (1978); United States v. Hatfield, 815 F.2d 1068, 1073 (6th Cir. 1987). Fed. R. App. P. 4(b) allows the district court, upon a showing of excusable neglect, to extend the time for a criminal appeal provided the motion to extend is filed within 40 days of the judgment. No such extension was sought or granted.

It is therefore ORDERED that the show cause order of September 5, 1990, is discharged, and this appeal is dismissed sua sponte for lack of jurisdiction, without prejudice to defendant's right to pursue his appeal in Case No. 90-1252. Rule 9(b), Local Rules of the Sixth Circuit.