Unpublished Dispositionhenry Wiley, Petitioner-appellant, v. Corrections Cabinet of Kentucky, Attorney General Ofkentucky, Respondents-appellees, 929 F.2d 702 (6th Cir. 1991)

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U.S. Court of Appeals for the Sixth Circuit - 929 F.2d 702 (6th Cir. 1991) April 4, 1991

E.D. Ky., No. 88-60019; Unthank, J.

E.D. Ky.


Before KENNEDY and RYAN, Circuit Judges, and FEIKENS, Senior District Judge* .


This matter is before the court upon consideration of the appellant's response to this court's February 4, 1991, order directing him to show cause why his appeal should not be dismissed for lack of jurisdiction. Appellant alleges that he was prepared to file a new notice of appeal as required by Fed. R. App. P. 4(a) (4) after the district court ruled upon his Fed. R. Civ. P. 59(e) motion but failed to do so because this court held appeal No. 90-6088 in abeyance.

It appears from the documents before the court that the judgment was entered February 1, 1989. A Fed. R. Civ. P. 60 motion was filed on April 2, 1990, and denied on June 29, 1990. A time-tolling Fed. R. Civ. P. 59(e) motion for reconsideration was served on July 13, 1990, and a notice of appeal was filed on August 10, 1990 (appeal No. 90-6088). Reconsideration was denied on August 20, 1990. Appeal No. 90-6088 was dismissed by this court for lack of jurisdiction on December 11, 1990. The notice of appeal filed on December 26, 1990, was ninety-eight days late (appeal No. 91-5010). 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. A court does not have a duty to notify an appellant of potential jurisdictional problems. See Pryor v. Marshall, 711 F.2d 63, 65 n. 4 (6th Cir. 1983).

Accordingly, it is ORDERED that appeal No. 91-5010 be, and it hereby is, dismissed for lack of jurisdiction. Rule 9(b) (1), Rules of the Sixth Circuit.


The Honorable John Feikens, Senior District Judge for the Eastern District of Michigan, sitting by designation