Unpublished Dispositionunited States of America, Plaintiff-appellee, v. James Wesley Heady, Defendant-appellant, 765 F.2d 147 (6th Cir. 1985)

This matter is before the Court upon consideration of the appellant's motion for appointment of counsel and response to this Court's show cause order.

It appears from the record that the order denying motion for reduction of sentence was entered September 27, 1984. A motion for reconsideration of that order was served on October 2, 1984, and denied on November 1, 1984. The notice of appeal filed on November 15, 1984 was two days late. (The tenth day was Sunday, November 11, 1984 and Monday, November 12, 1984, was Veterans' Day). Rules 4(b) and 26(a), Federal Rules of Appellate Procedure.

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); United States v. Hoye, 548 F.2d 1271 (6th Cir. 1977). Rule 4(b), Federal Rules of Appellate Procedure, provides that the ten day appeals period run from the date of entry of the order in the criminal docket. Rule 26(b), Federal Rules of Appellate Procedure, specifically provides that this Court cannot enlarge the time for filing a notice of appeal.

It is ORDERED that the appeal be and it hereby is dismissed without prejudice to any right appellant may have to seek an extension of time from the district court. Rule 9(d) (1), Rules of the Sixth Circuit.

It is further ORDERED that the motion for appointment of counsel be and hereby is denied.