United States v. James G. Artress

92 F.3d 1186, 1996 U.S. App. LEXIS 25766, 1996 WL 447645

• Court: Court of Appeals for the Sixth Circuit
• Decided: August 7, 1996
• Docket: 95-4228
• Status: Unpublished

Opinion

92 F.3d 1186

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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

No. 95-4228.

United States Court of Appeals, Sixth Circuit.

Aug. 7, 1996.

Before: KEITH, BOGGS, and BATCHELDER, Circuit Judges.

ORDER

This matter is before the court upon consideration of the response of the appellant to this court's order directing him to show cause why his appeal should not be dismissed for lack of jurisdiction on the basis of a late notice of appeal. Appellant responded stating that he received the district court's decision on October 20, 1995, and that he mailed his notice of appeal within ten days.

It appears from the documents before the court that the final order was entered August 23, 1995. A time-tolling motion to amend that order was denied by ruling entered October 13, 1995. The notice of appeal dated October 30 and filed November 6, 1995, was filed 14 days late. See Fed.R.App.P. 4(b) and 26(a).

The failure of appellant to timely file a notice of appeal deprives an appellate court of jurisdiction. Compliance with Fed.R.App.P. 4(b) is a mandatory and jurisdictional prerequisite which this court can neither waive nor extend. United States v. Guardino, 972 F.2d 682, 685 (6th Cir.1992); United States v. Wrice, 954 F.2d 406, 408 (6th Cir.) (per curiam), cert. denied, 504 U.S. 945 (1992); United States v. Hatfield, 815 F.2d 1068, 1073 (6th Cir.1987). The time for filing a notice of appeal runs from the date of entry of the order not the date it was received. See Fed.R.App.P. 4(a)(1); Senjuro v. Murray, 943 F.2d 36, 37 (10th Cir.1991) (per curiam); Reid v. White Motor Corp., 886 F.2d 1462, 1465-66 (6th Cir.1989), cert. denied, 494 U.S. 1080 (1990). 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 is dismissed without prejudice to any right of the appellant to seek an extension of time for his notice of appeal. If appellant wishes to pursue an appeal, he should file a motion for extension of time in the district court alleging excusable neglect for the late filing of the notice of appeal. If such motion is filed and granted, this appeal will be reinstated.