Unpublished Dispositionunited States of America, Plaintiff-appellee v. Donald Edward Raulerson, Defendant-appellant, 791 F.2d 935 (6th Cir. 1986)

This matter is before the Court upon consideration of appellant's response to this Court's show cause order.

It appears from the file that an order denying motion for new trial based upon newly discovered evidence was entered March 25, 1985. The notice of appeal filed on January 27, 1986, was 298 days late. Rules 4(b) and 26(a), Federal Rules of Appellate Procedure. Failure to receive a copy of the district court's decision does not relieve a party from failure to appeal within the appeals period. Pryor v. Marshall, 711 F.2d 63 (6th Cir. 1983). Reliance on the clerk to notify a party of the entry of an order does not constitute excusable neglect or good cause for failure to file a timely notice of appeal. Wilson v. Atwood Group, 725 F.2d 255, 258 (5th Cir. 1984).

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. United States v. Merrifield, 764 F.2d 436 (5th Cir. 1985). 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.