Unpublished Dispositionralph Edward Dean #169-464, Plaintiff-appellant, v. Ronald C. Marshall, Supt., Defendant-appellee, 825 F.2d 410 (6th Cir. 1987)

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US Court of Appeals for the Sixth Circuit - 825 F.2d 410 (6th Cir. 1987) Aug. 5, 1987


Before ENGEL, MERRITT and KRUPANSKY, Circuit Judges.

This matter is before the court upon consideration of the response of the appellant to this court's order directing him to show cause why his appeal should not be dismissed for lack of jurisdiction. Appellant asserts that he mailed his notice of appeal within the appeal period.

It appears from the record that the judgment was entered February 26, 1987. The notice of appeal filed on April 1, 1987, was two days late. Rules 4(a) 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. Mailing a notice of appeal does not constitute filing. Pryor v. Marshall, 711 F.2d 63 (6th Cir. 1983). Filing is only accomplished when the notice of appeal is actually received by the clerk or when it is placed in the clerk's post office box. Torras Herreria v. M/V Timur Star, 803 F.2d 215 (6th Cir. 1986). 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'l Bank & Trust Co., 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 hereby is dismissed for lack of jurisdiction. Rule 9(b) (1), Rules of the Sixth Circuit.