James E. Shorter v. William Dallman, Warden

25 F.3d 1050, 1994 U.S. App. LEXIS 21026, 1994 WL 194282

• Court: Court of Appeals for the Sixth Circuit
• Decided: May 16, 1994
• Docket: 93-4320
• Status: Published

Opinion

25 F.3d 1050
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

James E. SHORTER, Petitioner-Appellant,
v.
William DALLMAN, Warden, Respondent-Appellee.

No. 93-4320.

United States Court of Appeals, Sixth Circuit.

May 16, 1994.

Before MARTIN and JONES, Circuit Judges, and CONTIE, Senior Circuit Judge.

ORDER

This court entered an order on December 28, 1993, directing the appellant to show cause within twenty-one days why the appeal should not be dismissed for lack of jurisdiction because of a late notice of appeal. Appellant has failed to respond to that order but did file a motion for appointment of counsel.

It appears from the record that the final order was entered October 26, 1993. The undated notice of appeal filed on November 29, 1993, was three days late. Fed.R.App.P. 4(a) and 26(a).

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. Baker v. Raulie, 879 F.2d 1396, 1398 (6th Cir.1989) (per curiam); McMillan v. Barksdale, 823 F.2d 981, 982 (6th Cir.1987); Myers v. Ace Hardware, Inc., 777 F.2d 1099, 1102 (6th Cir.1985); Peake v. First Nat'l Bank & Trust Co., 717 F.2d 1016, 1018 (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 the motion for appointment of counsel is denied and the appeal is dismissed for lack of jurisdiction. Rule 8(a), Rules of the Sixth Circuit.