Unpublished Dispositionunited States of America, Plaintiff-appellee, v. Alfred Isley, Defendant-appellant, 895 F.2d 1415 (6th Cir. 1990)Annotate this Case
Before KEITH and KRUPANSKY, Circuit Judges, and ANNA DIGGS TAYLOR, District Judge* .
This court entered an order on November 6, 1989, directing the appellant to show cause within twenty-one days why the appeal should not be dismissed for lack of jurisdiction because of a late notice of appeal. Appellant has failed to respond.
It appears from the record that the final order was entered September 25, 1989. The notice of appeal dated October 2, 1989, and filed on October 6, 1989, was one day 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. 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. Hatfield, 815 F.2d 1068, 1073 (6th Cir. 1987); United States v. Merrifield, 764 F.2d 436, 437 (5th Cir. 1985) (per curiam). Delivery of a notice of appeal by a pro se prisoner to prison authorities for forwarding to a district court constitutes filing within the meaning of Fed. R. App. P. 3 and 4. Houston v. Lack, 487 U.S. 266 (1988); Fallen v. United States, 378 U.S. 139, 144 (1964). No allegation has been made that the notice of appeal was given to prison authorities within the appeal period. 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 it hereby is, dismissed for lack of jurisdiction without prejudice to any right of appellant to seek an extension of time from the district court for the notice of appeal. Rule 9(b) (1), Rules of the Sixth Circuit.
The Honorable Anna Diggs Taylor, U.S. District Judge for the Eastern District of Michigan, sitting by designation