United States v. Francisco Martinez

915 F.2d 1574, 1990 U.S. App. LEXIS 23912, 1990 WL 155293

• Court: Court of Appeals for the Sixth Circuit
• Decided: October 16, 1990
• Docket: 90-3780
• Status: Unpublished

Opinion

915 F.2d 1574

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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.
Francisco MARTINEZ, Defendant-Appellant.

No. 90-3780.

United States Court of Appeals, Sixth Circuit.

Oct. 16, 1990.

Before WELLFORD and DAVID A. NELSON, Circuit Judges; and JOINER, Senior District Judge.*

ORDER

This matter is before the court for consideration of appellant's response to this court's order of September 17, 1990, directing him to show cause as to why his appeal should not be dismissed for lack of jurisdiction.

The record discloses that on December 6, 1989, the United States District Court for the Northern District of Ohio entered a judgment sentencing appellant to a term of thirty-three months imprisonment. Appellant, however, did not file a notice of appeal until August 27, 1990. Moreover, during that time he did not file and serve a timely motion in arrest of judgment or for a new trial which would have tolled the running of the time for filing a notice of appeal under Fed.R.App.P. 4(b). The notice of appeal was therefore 252 days late. Fed.R.App.P. 4(b) and 26(a).

An appellant's failure to file a timely notice of appeal deprives this court of jurisdiction. Compliance with Fed.R.App.P. 4(b) is a mandatory, jurisdictional requirement which this court can neither waive nor extend. United States v. Willis, 804 F.2d 961, 962 n. 2 (6th Cir.1986). In his response to this court's order of September 17, 1990, appellant concedes that the appeal is untimely, but requests that the court excuse the jurisdictional defect on the grounds that he was prevented from filing a timely notice of appeal due to his ignorance of the law, his depressed mental state, and acts of omission by his attorney. Even if such reasons were sufficient to constitute excusable neglect, they cannot render the appeal timely as Fed.R.App.P. 26(b) specifies that this court cannot enlarge the time for filing a notice of appeal. Rather, appellant was required to seek that relief from the district court within the time period provided in Fed.R.App.P. 4(b). Appellant did not comply with that rule.

Accordingly, it is ORDERED that the appeal is hereby dismissed for lack of jurisdiction. Rule 9(b)(1), Rules of the Sixth Circuit.

* The Honorable Charles W. Joiner, Senior U.S. District Judge for the Eastern District of Michigan, sitting by designation