OpenJurist

940 F2d 658 Alstatt v. Sowders

940 F.2d 658

John D. ALSTATT, Petitioner-Appellant,
v.
Dewey SOWDERS, Warden, Respondent-Appellee.

No. 91-5337.

United States Court of Appeals, Sixth Circuit.

Aug. 12, 1991.

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

1

Before KENNEDY and MILBURN, Circuit Judges, and ZATKOFF, District Judge*.

ORDER

2

This matter is before the court upon consideration of the motion to dismiss the appeal for lack of jurisdiction because of a late notice of appeal. Appellant has failed to respond. Motions for counsel and bail have been filed by the appellant. The appellee responded to the motion for bail and the appellant replied.

3

A review of the record indicates that the judgment of the district court dismissing the habeas corpus petition was entered February 14, 1990. Appellant's notice of appeal filed on March 11, 1991, was almost one year late. Fed.R.App.P. 4(a) and 26(a).

4

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. 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 the motions for counsel and bail be denied, the motion to dismiss be granted and the appeal be, and it hereby is, dismissed. Rule 8(a), Rules of the Sixth Circuit.

*

The Honorable Lawrence P. Zatkoff, U.S. District Judge for the Eastern District of Michigan, sitting by designation