Unpublished Dispositionunited States of America, Plaintiff-appellee, v. Fred M. Conti, Aka Deacon, Defendant-appellant, 758 F.2d 654 (6th Cir. 1985)

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US Court of Appeals for the Sixth Circuit - 758 F.2d 654 (6th Cir. 1985) 2/21/85



This matter is before the Court upon consideration of the appellant's motion for bail and response to this Court's January 24, 1985, show cause order.

It appears from the record that the judgment was entered September 26, 1984. The notice of appeal filed on October 26, 1984 was 17 days late. Rules 4(b) and 26(a), Federal Rules of Appellate Procedure. Although appellant alleges that the notice of appeal was mailed to the district court on October 5, 1984, the notice of appeal was not dated by the appellant until October 10, 1984. In addition, the date of mailing cannot cure the untimely filing of a notice of appeal. Pryor v. Marshall, 711 F.2d 63 (6th Cir. 1983).

The failure of an appellant to timely file a notice of appeal deprives an appellate court of jurisdiction. Compliance with Rule 4(b), Federal Rules of Appellate Procedure, is a mandatory and jurisdictional prerequisite which this Court can neither waive nor extend. Peake v. First Nat. Bank and Trust Co. of Marquette, 717 F.2d 1016 (6th Cir. 1983). Rule 26(b), Federal Rules of Appellate Procedure, 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 dismised for lack of jurisdiction. Rule 9(d) (1), Rules of the Sixth Circuit.

It is further ORDERED that appellant's motion for bail be and it hereby is denied.