Carl Decker, Petitioner-appellant, v. Arthur Tate, Jr., Supt., Respondent-appellee, 958 F.2d 371 (6th Cir. 1992)

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US Court of Appeals for the Sixth Circuit - 958 F.2d 371 (6th Cir. 1992) March 2, 1992

Before MILBURN and RYAN, Circuit Judges, and ZATKOFF, District Judge.* 

ORDER

The petitioner is a pro se litigant who filed a petition for a writ of habeas corpus in the district court in 1987. Relief was denied in a 1988 judgment and the petitioner filed a timely notice of appeal which resulted in Case No. 88-3546 herein. Faced with both a briefing schedule and impending surgery for throat cancer, the petitioner filed a motion for voluntary dismissal of that appeal. The motion was granted in a clerk's order filed on May 11, 1989.

On December 3, 1991, the Clerk's Office received a letter from the petitioner who indicated a desire to reinstate his appeal and inquired as to the steps he needed to take to seek such reinstatement. In an effort to gain appellate review, he also filed a notice of appeal in the district court on January 9, 1992. That notice of appeal resulted in Case No. 92-3119 herein.

Under Rule 4(a) (1), Fed. R. App. P., the petitioner had thirty (30) days in which to file a timely notice of appeal from the district court's judgment of May 27, 1988. Filing a notice of appeal within the time limits of Rule 4 are mandatory and jurisdictional. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 203 (1988). The notice of appeal filed on January 9, 1992, was untimely and imparted no jurisdiction to this court.

It therefore is ORDERED that Case No. 92-3119 is dismissed for lack of appellate jurisdiction.

We chose, however, to construe the petitioner's letter received herein on December 3, 1991, as a motion for reinstatement of Case No. 88-3546 filed on the date so received. Upon review of the file and the petitioner's submissions and statements therein, we conclude that such reinstatement is warranted under the unusual facts of this appeal.

It therefore is ORDERED further that the motion for reinstatement of Case No. 88-3546 is granted. The clerk shall so notify the parties and establish a new briefing schedule therein.

 *

The Honorable Lawrence P. Zatkoff, U.S. District Judge for the Eastern District of Michigan, sitting by designation