Unpublished Dispositionunited States of America, Plaintiff-appellant, v. James Rumler, Defendant-appellant, 928 F.2d 1134 (6th Cir. 1991)

E.D. Mich.

APPEAL DISMISSED.

ORDER

The defendant appeals his conviction and sentence for obstruction of justice, conspiracy, use of false documents, and aiding and abetting. For purposes of 28 U.S.C. § 1291, the final judgment was entered on December 19, 1990, when the conviction order and sentence was entered on the district court's docket sheet. The defendant filed his pro se notice of appeal in this case on January 17, 1991.

Pursuant to the provisions of Rule 4(b), Fed. R. App. P., the defendant had ten (10) days from the entry of judgment i.e., until December 31, 1990, to file his notice of appeal. The notice of appeal filed on January 17, 1991, 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 nor 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). Rule 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.

The court notes that the defendant has another appeal pending from the aforementioned conviction and sentence which was filed on December 21, 1990 and docketed as Case No. 91-1004. The notice of appeal in Case No. 91-1004 was filed within the ten (10) day period mandated by Rule 4(b).

It is therefore ORDERED that the defendant's appeal in Case No. 91-1134 is dismissed sua sponte for lack of jurisdiction. Rule 9(b) (1), Local Rules of the Sixth Circuit. The defendant's motions to proceed in forma pauperis and motion for appointment of counsel in Case No. 91-1134 are rendered moot. This order is without prejudice to the defendant's right to pursue his appeal in Case No. 91-1004.