United States v. David A. Maddux

856 F.2d 196, 1988 U.S. App. LEXIS 12221, 1988 WL 93102

• Court: Court of Appeals for the Sixth Circuit
• Decided: September 1, 1988
• Docket: 88-5731
• Status: Unpublished

Opinion

856 F.2d 196

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
UNITED STATES of America, Plaintiff-Appellee,
v.
David A. MADDUX, Defendant-Appellant.

No. 88-5731.

United States Court of Appeals, Sixth Circuit.

Sept. 1, 1988.

Before NATHANIEL R. JONES and RALPH B. GUY, Jr., Circuit Judges, and CARL B. RUBIN, Chief District Judge.*

ORDER

This matter is before the court upon consideration of appellant's response to this court's July 21, 1988, order directing him to show cause why his appeal should not be dismissed for lack of jurisdiction. The appellant's response states that he did not receive the judgment of the district court until June 24, 1988.

A review of the record indicates that the district court judgment denying the Fed.R.Crim.P. 35 motion was entered May 27, 1988. The notice of appeal prepared on June 22, 1988, and filed in the district court on June 27, 1988, was 21 days late.

This court lacks jurisdiction in this appeal. Fed.R.Civ.P. 77(d) states that lack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed.

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, 982 (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, 41 (6th Cir.1984) (per curiam); 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 appeal be and hereby is dismissed for lack of jurisdiction. Rule 9(b)(1), Rules of the Sixth Circuit. Because there is nothing in the record to indicate the pro se appellant, who is incarcerated, received any notice of the judgment prior to the expiration of the time for appeal, this order is without prejudice to the appellant returning to the district court to seek vacation and re-entry of that judgment in order to permit the appeal time to run anew.

* The Honorable Carl B. Rubin, Chief U.S. District Judge for the Southern District of Ohio, sitting by designation