Unpublished Dispositiongary S. Mayes, Plaintiff-appellant, v. Judge Balitsaris, Judge Ford, Judge Duncan, et al.,defendants-appellees, 825 F.2d 411 (6th Cir. 1987)

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US Court of Appeals for the Sixth Circuit - 825 F.2d 411 (6th Cir. 1987) Aug. 4, 1987


Before ENGEL, MERRITT and KRUPANSKY, Circuit Judges.

This matter is before the court upon consideration of the appellant's motion for appointment of counsel and response to this court's order directing him to show cause why his appeal should not be dismissed for lack of jurisdiction. Appellant asserts that because he was transferred to a different correctional facility that it took three months for him to receive the district court's decision.

It appears from the record that the final order was entered January 13, 1987. The notice of appeal filed on April 21, 1987, was 68 days late. Rules 4(a) and 26(a), Federal Rules of Appellate Procedure. The notice of appeal alleged excusable neglect and could be treated as a motion for extension of time. Pryor v. Marshall, 711 F.2d 63 (6th Cir. 1983). However, it was not filed within the time allotted by Rule 4(a) (5), Federal Rules of Appellate Procedure, to move for an extension of time.

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'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 motion for counsel be denied and the appeal be dismissed for lack of jurisdiction. Rule 9(b) (1), Rules of the Sixth Circuit.