Unpublished Dispositionjames Anthony Austin, Plaintiff-appellant, v. United States of America, Defendant-appellee, 816 F.2d 678 (6th Cir. 1987)

ORDER

The appellee, United States of America, has moved to dismiss this appeal as being filed in an untimely manner. The appellant has not filed a response to the motion.

On November 29, 1985, the district court entered an order dismissing appellant's 28 U.S.C. § 2255 motion to vacate his 1977 conviction for writing threatening letters. Notice of appeal from the order of the district court was due by January 20, 1986, the final day within 60 days of entry of the order. Rule 4(a), Federal Rules of Appellate Procedure; Rule 11, Rules Governing Habeas Corpus Proceedings under Sec. 2255 of Title 28. Appellant did not file his notice of appeal until December 1, 1986, some 306 days later. An extension of time within which to file the notice of appeal was not sought by appellant nor granted by the district court. Rule 4(a) (5), Federal Rules of Appellate Procedure.

Because appellant has failed to file a timely notice of appeal in accordance with Rule 4(a), Federal Rules of Appellate Procedure, this Court lacks jurisdiction to entertain his appeal. Compliance with the time prescription of Rule 4(a) (1) is jurisdictional. Peake v. First National Bank & Trust Co., 717 F.2d 1016 (6th Cir. 1983). This Court may not enlarge the time prescribed by law for filing a notice of appeal. Rule 26(b), Federal Rules of Appellate Procedure.

Accordingly, appellee's motion to dismiss is granted and it is ORDERED that this appeal be and hereby is dismissed. Rule 9(b) (1), Rules of the Sixth Circuit.