Unpublished Dispositionabdullah H. Shabazz, Petitioner-appellant, v. Dewey Sowders, Warden, Respondent-appellee, 933 F.2d 1009 (6th Cir. 1991)

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U.S. Court of Appeals for the Sixth Circuit - 933 F.2d 1009 (6th Cir. 1991) May 21, 1991

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


This matter is before the court upon consideration of the appellant's response to this court's March 15, 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. In his response, he states that he relied on a fellow inmate to file a notice of appeal on his behalf. He seeks to have this court hold the appeal in abeyance pending the district court's ruling on his Fed. R. Civ. P. 60(b) motion to vacate the decision to allow him to file a new appeal within the appeal period or, in the alternative, he seeks to dismiss his appeal without prejudice. The appellee has filed a motion to dismiss.

It appears from the record that the final order was entered January 23, 1990. The notice of appeal filed on February 25, 1991, was over one year 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). A Fed. R. Civ. P. 60(b) motion for relief cannot normally be used to relax and extend the appeal period. Williams v. Hatcher, 890 F.2d 993, 995 (7th Cir. 1989); Ellis v. Delta Air Lines, Inc., 852 F.2d 842, 844 (5th Cir. 1988); Steinhoff v. Harris, 698 F.2d 270, 275-76 (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 the appeal be, and it hereby is, dismissed for lack of jurisdiction. Rule 8(a), Rules of the Sixth Circuit. The motion of the appellant to hold the appeal in abeyance or, in the alternative, to dismiss the appeal without prejudice is denied.