Unpublished Dispositionunited States of America, Plaintiff-appellee, v. Joseph Nicholson, Defendant-appellant, 919 F.2d 142 (6th Cir. 1990)

ORDER

Defendant, Joseph Nicholson appeals his conviction and sentence for narcotic and firearm offenses. The government now moves to dismiss the appeal. The defendant responds in opposition.

For purpose of 28 U.S.C. § 1291, the final judgment was entered on August 30, 1990, when the judgment and conviction order was entered on the district court's docket sheet. The defendant filed his notice of appeal on September 19, 1990. Pursuant to the provisions of Rule 4(b), Fed. R. App. P., the defendant had ten (10) days from the entry of judgment, i.e., until September 10, 1990 in which to file his notice of appeal. The notice of appeal filed September 19, 1990 was not within that time period. The defendant's counsel states in his response that the defendant did not immediately communicate his desire to appeal to counsel and that counsel was out of town during part of the ten day period in which the defendant had to file his notice of appeal.

Timely filing of a notice of appeal is a mandatory and jurisdictional prerequisite which this Court can neither waive nor extend. Browder v. Director, Department of Corrections of Illinois, 434 U.S. 257, 264 (1978); United States v. Hatfield, 815 F.2d 1068, 1073 (6th Cir. 1987). Fed. R. App. P. 4(b) allows the district court, upon a showing of excusable neglect, to extend the time for a criminal appeal provided the motion to extend is filed within 40 days of the judgment. No such extension was sought or granted.

It is therefore ORDERED that the motion to dismiss is granted. This order is without prejudice to any remedies the defendant may have under 28 U.S.C. § 2255.