Unpublished Dispositionkenneth Brooks, Petitioner-appellant, v. Ted Engle, Superintendent, Respondent-appellee, 772 F.2d 905 (6th Cir. 1985)

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US Court of Appeals for the Sixth Circuit - 772 F.2d 905 (6th Cir. 1985) 8/29/85

S.D. Ohio

APPEAL DISMISSED

ORDER

BEFORE: MARTIN, JONES and WELLFORD, Circuit Judges.


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

It appears from the record that the judgment was entered November 5, 1984. The notice of appeal filed on January 8, 1985, was 34 days late. Rules 4(a) and 26(a), Federal Rules of Appellate Procedure. The motion for reconsideration filed in the district court on November 20, 1984, was not timely served and did not toll the appeals period. Rule 59(e), Federal Rules of Civil Procedure; and Rule 4(a) (4), Federal Rules of Appellate Procedure. The record reflects that the district court has not ruled on the motion for reconsideration.

The failure of an appellant to timely file a notice of appeal deprives an appellate court of jurisdiction. Compliance with Rule 4(a), 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 dismissed for lack of jurisdiction. 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.