OpenJurist

94 F3d 644 Butts v. Wamsley

94 F.3d 644

Roger E. BUTTS, Sr., Plaintiff-Appellant,
v.
WAMSLEY, Mr.; Smith, Sergeant; Jenkins, Mr.; Morris
Bayes, Defendants-Appellees.

No. 95-4339.

United States Court of Appeals, Sixth Circuit.

May 13, 1996.

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

1

Before: SILER and BATCHELDER, Circuit Judges; CARR, District Judge.*

ORDER

2

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 on the basis of a late notice of appeal. Appellant responded stating that he wasn't aware of the 30 day appeal period, that he was preoccupied with preparations for his parole hearing, and he was not aware that he should have sought an extension of time from the district court for filing the notice of appeal.

3

It appears from the documents before the court that the judgment was entered September 6, 1995. The notice of appeal filed on December 15, 1995, was 70 days late. Fed.R.App.P. 4(a) and 26(a).

4

The failure of 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.

5

Accordingly, it is ORDERED that the appeal is dismissed for lack of jurisdiction.

*

The Honorable James G. Carr, United States District Judge for the Northern District of Ohio, sitting by designation