Unpublished Dispositionotha Gene Buchanan, Petitioner-appellant, v. al C. Parke, Warden, Respondent-appellee, 933 F.2d 1007 (6th Cir. 1991)

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U.S. Court of Appeals for the Sixth Circuit - 933 F.2d 1007 (6th Cir. 1991) May 21, 1991

Before ALAN E. NORRIS and SUHRHEINRICH, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.


ORDER

This matter is before the court upon consideration of the appellant's response to this court's March 25, 1991, order directing him to show cause why his appeal should not be dismissed for lack of jurisdiction because of a late notice of appeal. Appellant's response states that he filed a notice of appeal on October 22, 1990, and that in an attempt to obtain evidentiary hearing transcripts a second notice of appeal was inadvertently sent to the district court and filed March 6, 1991.

It appears from the record that the final order was entered October 12, 1990. A notice of appeal was filed on October 25, 1990, and docketed as appeal No. 91-5065. The notice of appeal filed on March 6, 1991, and docketed as appeal No. 91-5310, was 113 days 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.

Accordingly, it is ORDERED that appeal No. 91-5310 be, and it hereby is, dismissed for lack of jurisdiction. Rule 8(a), Rules of the Sixth Circuit.