Unpublished Dispositionunited States of America, Plaintiff-appellee, v. Henry Daniel Stull, Sr., Defendant-appellant, 848 F.2d 195 (6th Cir. 1988)

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US Court of Appeals for the Sixth Circuit - 848 F.2d 195 (6th Cir. 1988) May 3, 1988

Before MERRITT and CORNELIA G. KENNEDY, 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. He states that he is knowledgeable in the law, that the filing of the notice of appeal by the district court waived the ten day appeals period, and that strict adherence to the appeals period is improper in this case.

It appears from the record that the judgment was entered November 10, 1987. The notice of appeal filed on November 23, 1987, was 3 days late. Fed. R. App. P. 4(b) and 26(a).

The failure of an appellant to timely file a notice of appeal deprives an appellate court of jurisdiction. The filing of a notice of appeal is not tantamount to the waiver of the appeals period by the district court nor the granting of an extension of time. Cel-A-Pak v. California Agric. Labor Relations Bd., 680 F.2d 664 (9th Cir.), cert. denied, 459 U.S. 1071 (1982) (per curiam); United States v. Lucas, 597 F.2d 243 (10th Cir. 1981) (per curiam). Compliance with Fed. R. App. P. 4(b) 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). Fed. R. App. P. 26(b) 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.