Earl Lewis Strickland v. Ronald C. Marshall

803 F.2d 721, 1986 U.S. App. LEXIS 31277, 1986 WL 17797

• Court: Court of Appeals for the Sixth Circuit
• Decided: September 26, 1986
• Docket: 86-3643
• Status: Unpublished

Opinion

803 F.2d 721

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
EARL LEWIS STRICKLAND, Petitioner-Appellant
v.
RONALD C. MARSHALL, Respondent-Appellee.

No. 86-3643.

United States Court of Appeals, Sixth Circuit.

Sept. 26, 1986.

BEFORE: KEITH, MERRITT and NORRIS, Circuit Judges.

ORDER

This matter is before the Court upon consideration of appellant's response to this Court's order of August 22, 1986, directing him to show cause as to why the appeal should not be dismissed as untimely filed.

On April 11, 1986, the district court entered a judgment dismissing appellant's petition for a writ of habeas corpus. Appellant, however, did not file a notice of appeal from that judgment until June 20, 1986, 39 days after the expiration of the prescribed time for the taking of such an action. Rule 4(a)(1), Federal Rules of Appellate Procedure. Furthermore, appellant did not file or serve any motions in the district court which would have tolled the time for filing a notice of appeal from that judgment. Rule 4(a)(4), Federal Rules of Appellate Procedure. Nor did he properly seek an extension of time in which to file a notice of appeal from the district court pursuant to Rule 4(a)(5), Federal Rules of Appellate Procedure. Pryor v. Marshall, 711 F.2d 63 (6th Cir. 1983).

Compliance with Rule 4(a), Federal Rules of Appellate Procedure, is a mandatory jurisdictional requirement which this Court can neither waive nor extend. Peake v. First Nat'l Bank & Trust Co., 717 F.2d 1016 (6th Cir. 1983). Rule 26(b), Federal Rules of Appellate Procedure, specifically provides that this Court cannot enlarge the time in which the notice of appeal is required to be filed. Consequently, appellant's failure to file a timely notice of appeal from the district court's judgment of April 11, 1986, deprives this Court of jurisdiction over the appeal.

Therefore, it is ORDERED that the appeal be and hereby is dismissed pursuant to Rule 4(a), Federal Rules of Appellate Procedure.