OpenJurist

982 F2d 525 Gonnella v. D Purkett

982 F.2d 525

Robert C. GONNELLA, Appellant,
v.
James D. PURKETT, Appellee.

No. 92-2220.

United States Court of Appeals,
Eighth Circuit.

Submitted: November 10, 1992.
Filed: December 16, 1992.

NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.

Before JOHN R. GIBSON, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

PER CURIAM.

1

The district court1 dismissed without prejudice Robert C. Gonnella's habeas corpus petition. Rather than filing a notice of appeal, Gonnella filed a motion for certificate of probable cause on May 21, 1992-more than thirty days after entry of judgment on March 31, 1992. We dismiss the appeal for lack of jurisdiction.

2

Federal Rule of Appellate Procedure 4(a)(1) requires that the notice of appeal in a civil case be filed within thirty days after judgment is entered. "[T]he timely filing of a notice of appeal is both mandatory and jurisdictional." United States v. Anna, 843 F.2d 1146, 1147 (8th Cir. 1988); see also Turner v. Armontrout, 922 F.2d 492, 493 (8th Cir. 1991) ("[s]ubject matter jurisdiction ... is a threshold requirement which must be assured"). A timely motion for certificate of probable cause can be considered a notice of appeal. Lomax v. Armontrout, 923 F.2d 574, 575 (8th Cir.), cert. denied, 112 S. Ct. 60 (1991); Turner, 922 F.2d at 494. Federal Rule of Appellate Procedure 4(a)(5), however, requires that a party file a timely motion for extension of time if that party desires to file a notice of appeal more than thirty days after entry of judgment in a civil case. Campbell v. White, 721 F.2d 644 (8th Cir. 1983). An untimely notice of appeal is not a substitute for a motion for extension of time under Rule 4(a)(5). Id. Likewise, a motion for certificate of probable cause filed more than thirty days after entry of judgment is not a substitute for a motion for extension of time under Rule 4(a)(5).

3

Accordingly, the appeal is dismissed.

1

The Honorable William L. Hungate, Senior United States District Judge for the Eastern District of Missouri, now retired, adopting the report and recommendations of the Honorable David D. Noce, United States Magistrate Judge for the Eastern District of Missouri