Unpublished Dispositionronald Edward Ploeger, Petitioner-appellant, v. Warden, Orient Correctional Institution, Pickaway County,ohio, Respondent-appellee, 902 F.2d 34 (6th Cir. 1990)Annotate this Case
May 9, 1990
Before KENNEDY and WELLFORD, Circuit Judges, and CHARLES W. JOINER, Senior District Judge* .
This matter is before the court upon consideration of the appellee's motion to dismiss the appeal for lack of jurisdiction. Appellant has failed to respond but his January 14, 1990, letter was construed as a motion for appointment of counsel.
It appears from the record that the final judgment was entered October 2, 1987. On February 6, 1989, appellant filed a "Motion to Free a Victim" which was denied by judgment entered March 28, 1989. Appellant's letter dated January 7, 1990, was filed on January 9, 1990, as a notice of appeal. The notice of appeal was almost nine months late. Fed. R. App. P. 4(a) 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(a) is a mandatory and jurisdictional prerequisite which this court can neither waive nor extend. Baker v. Raulie, 879 F.2d 1396, 1398 (6th Cir. 1989) (per curiam); McMillan v. Barksdale, 823 F.2d 981, 982 (6th Cir. 1987); Myers v. Ace Hardware, Inc., 777 F.2d 1099, 1102 (6th Cir. 1985); Denley v. Shearson/American Express, Inc., 733 F.2d 39, 41 (6th Cir. 1984) (per curiam); Peake v. First Nat'l Bank & Trust Co., 717 F.2d 1016, 1018 (6th Cir. 1983). Fed. R. App. P. 26(b) specifically provides that this court cannot enlarge the time for filing a notice of appeal.
It is ORDERED that the motion for appointment of counsel be denied and the motion to dismiss be, and it hereby is, granted. Rule 8, Rules of the Sixth Circuit.
The Honorable Charles W. Joiner, Senior U.S. District Judge for the Eastern District of Michigan, sitting by designation