Brian L. Booker v. John Gluch

848 F.2d 188, 1988 U.S. App. LEXIS 6908, 1988 WL 50186

• Court: Court of Appeals for the Sixth Circuit
• Decided: May 20, 1988
• Docket: 88-1276
• Status: Unpublished

Opinion

848 F.2d 188

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Brian L. BOOKER, Petitioner-Appellant,
v.
John GLUCH, Respondent-Appellee.

No. 88-1276.

United States Court of Appeals, Sixth Circuit.

May 20, 1988.

Before NATHANIEL R. JONES, WELLFORD and ALAN E. NORRIS Circuit Judges.

ORDER

This matter is before the court upon consideration of the appellant's response to this court's order directing him to show cause why his appeal should not be dismissed for lack of jurisdiction. In his response, he states that he believed that a notice of appeal was automatically filed upon the denial of a habeas corpus petition. Appellant has also filed a motion for appointment of counsel.

It appears from the record that the judgment was entered November 2, 1987. The notice of appeal filed on March 7, 1988, was 63 days late. Fed.R.App.P. 4(a) and 26(a). Although appellant in a memorandum in support of his notice of appeal sought leave to file his notice of appeal instanter, the memorandum filed on March 7, 1988, was outside the extension period permitted by Fed.R.App.P. 4(a)(5).

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. McMillan v. Barksdale, 823 F.2d 981 (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 (6th Cir.1984) (per curiam); Peake v. First Nat'l Bank & Trust Co., 717 F.2d 1016 (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 motion for counsel be denied and the appeal be and hereby is dismissed for lack of jurisdiction. Rule 9(b)(1), Rules of the Sixth Circuit.