United States of America, Plaintiff-appellee, v. Larry Saulsberry, Defendant-appellant, 948 F.2d 1291 (6th Cir. 1991)

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U.S. Court of Appeals for the Sixth Circuit - 948 F.2d 1291 (6th Cir. 1991)

Nov. 25, 1991


Before KENNEDY and BOGGS, Circuit Judges, and LIVELY, Senior Circuit Judge.


ORDER

On September 13, 1991, the defendant appealed from a judgment of conviction and sentence entered on July 18, 1991. The notice of appeal was filed 46 days late. See Rule 4(b), Fed. R. App. P. The record does not reflect that the defendant either sought or received an extension of time to file his notice of appeal. The failure to take any action whatever within 40 days of the entry of judgment is invariably fatal. United States v. Hoye, 548 F.2d 1271 (6th Cir. 1977) (per curiam). Timely filing of a notice of appeal is a mandatory and jurisdictional requirement which this court can neither waive nor extend. See Browder v. Director, Department of Corrections of Illinois, 434 U.S. 257, 264 (1978). The notice of appeal filed on September 18 imparted no jurisdiction to this court. On November 4, 1991, this court entered an order directing the defendant to show cause why his appeal should not be dismissed for lack of jurisdiction. The defendant has not responded.

It is therefore ORDERED that the defendant's appeal is dismissed sua sponte for lack of jurisdiction. Rule 9(b) (1), Local Rules of the Sixth Circuit. This order is without prejudice to any remedy the defendant may have under 28 U.S.C. § 2255.