Unpublished Dispositionunited States of America, Plaintiff-appellee, v. Kenneth Lyle Davis, Defendant-appellant, 923 F.2d 855 (6th Cir. 1991)

ORDER

These matters are before the court upon consideration of the appellant's response to this court's November 26, 1990, order in appeal No. 90-6402 directing him to show cause why that appeal should not be dismissed for lack of jurisdiction. Appellant states that his notice of appeal was late because of a delay in receiving access to his legal documents after his transfer to a different correctional facility.

It appears from the documents before the court that the final order denying appellant's Fed. R. Crim. P. 35 motion was entered on October 4, 1990. The notice of appeal filed on November 5, 1990, was 21 days late (appeal No. 90-6402). Fed. R. App. P. 4(b) and 26(a). An order was entered November 7, 1990, denying leave to proceed on appeal in forma pauperis. Appellant appealed the November 7, 1990, order on November 29, 1990 (appeal No. 90-6519).

This court lacks jurisdiction in appeal No. 90-6402. 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(b) is a mandatory and jurisdictional prerequisite which this court can neither waive nor extend. United States v. Hatfield, 815 F.2d 1068, 1073 (6th Cir. 1987); United States v. Willis, 804 F.2d 961, 963 n. 2 (6th Cir. 1986); United States v. Merrifield, 764 F.2d 436, 437 (5th Cir. 1985) (per curiam). Fed. R. App. P. 26(b) specifically provides that this court cannot enlarge the time for filing a notice of appeal.

This court also lacks jurisdiction in appeal No. 90-6519 from the district court's denial of leave to proceed on appeal in forma pauperis. Fed. R. App. P. 24(a) provides that if the district court denies leave to proceed on appeal in forma pauperis the appellant may file a motion to so proceed in the court of appeals. Such a motion was properly filed on December 14, 1990, in appeal No. 90-6402. The filing of a separate appeal from the district court's denial of pauper status on appeal is not appropriate.

It is ORDERED that the appeals be, and they hereby are, dismissed for lack of jurisdiction. Rule 9(b) (1), Rules of the Sixth Circuit. Dismissal of appeal No. 90-6402 is without prejudice to any right of the appellant to seek an extension of time from the district court for the notice of appeal.