Eric F. Binns v. George Alexander

895 F.2d 1412, 1990 U.S. App. LEXIS 1654, 1990 WL 9983

• Court: Court of Appeals for the Sixth Circuit
• Decided: February 7, 1990
• Docket: 89-3849
• Status: Unpublished

Opinion

895 F.2d 1412

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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

No. 89-3849.

United States Court of Appeals, Sixth Circuit.

Feb. 7, 1990.

Before KEITH and KRUPANSKY, Circuit Judges, and ANNA DIGGS TAYLOR, District Judge.*

ORDER

Petitioner Binns moves for bail on appeal from the district court's judgment denying Binns's petition for a writ of habeas corpus. 28 U.S.C. Sec. 2254 (1982). The appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon consideration, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

In Columbus, Ohio state court, Binns pleaded guilty to voluntary manslaughter. He received a ten to twenty-five year sentence. He exhausted his state remedies.

The district court entered its judgment in this case on June 13, 1989. Binns timely served a Fed.R.Civ.P. 60(b) motion. Construing this motion as a Rule 59(e) motion to alter or amend, the motion served to extend the time for filing the notice of appeal until the district court denied the motion. Fed.R.App.P. 4(a)(4).

The district court denied the motion on August 10, 1989. The notice of appeal was due on Monday, September 11. Fed.R.App.P. 4(a)(1) and 26(a). The notice of appeal was filed on September 12, one day late.

The failure of an appellant to file a timely notice of appeal deprives an appellate court of jurisdiction. Compliance with Rule 4(a) is a mandatory and jurisdictional prerequisite which this court can neither waive nor extend. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982) (per curiam). Therefore, this court lacks jurisdiction over the appeal.

The appeal is dismissed under Rule 9(b)(1), Rules of the Sixth Circuit, for lack of jurisdiction.

* The Honorable Anna Diggs Taylor, U.S. District Judge for the Eastern District of Michigan, sitting by designation