Unpublished Dispositionunited States of America, Plaintiff-appellee, v. Fred J. Kelly, Defendant-appellant, 811 F.2d 608 (6th Cir. 1986)

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US Court of Appeals for the Sixth Circuit - 811 F.2d 608 (6th Cir. 1986) Dec. 15, 1986

Before JONES and MILBURN, Circuit Judges, and CONTIE, Senior Circuit Judge.


This matter is before the Court upon consideration of the appellant's response to this Court's order directing him to show cause why his appeal should not be dismissed for lack of jurisdiction. Appellant has also filed a motion for leave to proceed in forma pauperis and for counsel.

It appears from the file that the order denying the Rule 35, Federal Rules of Criminal Procedure, motion was entered April 25, 1986. The notice of appeal filed on October 9, 1986, was 157 days late. United States v. Russo, 760 F.2d 1229 (11th Cir. 1985); 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. United States v. Hoye, 548 F.2d 1271 (6th Cir. 1977). 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 hereby is dismissed for lack of jurisdiction and the motion for leave to proceed in forma pauperis and for counsel be denied. Rule 9(d) (1), Rules of the Sixth Circuit.