848 F.2d 193
Robert NORWOOD, Petitioner-Appellant,
John WIREMAN, Warden, Camp Lehman Correctional Facility,
United States Court of Appeals, Sixth Circuit.
May 20, 1988.
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Before NATHANIEL R. JONES, WELLFORD and ALAN E. NORRIS, Circuit Judges.
This matter is before the court upon consideration of the appellant's response to this court's order directing him to show cause why his appeal should not be dismissed for lack of jurisdiction. Appellant states that he was unaware of the appeals period but that he mailed the notice of appeal within the appeals period. He also seeks appointment of counsel.
It appears from the record that the judgment was entered January 19, 1988. The notice of appeal filed on February 19, 1988, was one day 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. McMillan v. Barksdale, 823 F.2d 981 (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 (6th Cir.1984) (per curiam); Peake v. First Nat'l Bank & Trust Co., 717 F.2d 1016 (6th Cir.1983). Fed.R.App.P. 26(b) specifically provides that this court cannot enlarge the time for filing a notice of appeal. Mailing of a notice of appeal does not constitute filing. The date of receipt of the notice of appeal in the district court is what confers jurisdiction on this court. Torras Herreria v. M/V Timur Star, 803 F.2d 215 (6th Cir.1986); Pryor v. Marshall, 711 F.2d 63 (6th Cir.1983).
Accordingly, it is ORDERED that motion for counsel be denied and the appeal be and hereby is dismissed for lack of jurisdiction. Rule 9(b)(1), Rules of the Sixth Circuit.