815 F2d 704 Lawson v. Ronald C Marshall Supt

815 F.2d 704

Ernest LAWSON, Jr., Petitioner-Appellant,
RONALD C. MARSHALL, SUPT., Respondent-Appellee.

No. 86-4121.

United States Court of Appeals, Sixth Circuit.

March 26, 1987.


Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

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Before: KRUPANSKY, NELSON and BOGGS; Circuit Judges.


Appellant has responded to this Court's order to show cause why this appeal should not be dismissed as untimely filed.


Appellant filed his notice of appeal from the district court judgment which dismissed his petition for a writ of habeas corpus (28 U.S.C. Sec. 2254). The district court judgment was entered November 4, 1986, and the notice of appeal was filed December 8, 1986--four days late. Rule 4(a), Federal Rules of Appellate Procedure. No time-tolling motions were filed; no extension of time was sought or granted.


In the response to show cause order, appellant argues that the provisions of Rule 26(c), Federal Rules of Appellate Procedure, allow an additional three days when a party is required to act within a prescribed period of time after service of a paper and the paper is served by mail. This rule is inapplicable to the case herein. Rule 26(c) applies only when action is required within a prescribed period of time after service of a paper by mail. The 30 day requirement of Rule 4(a), Federal Rules of Appellate Procedure, is contingent on date of entry of the judgment from which the appeal is taken, not the date of service of judgment.


Compliance with Rule 4(a), Federal Rules of Appellate Procedure, is a mandatory and jurisdictional prerequisite which this Court can neither extend nor waive. Peake v. First Nat'l Bank & Trust Co., 717 F.2d 1016 (6th Cir.1983). This appeal was untimely filed and is hereby dismissed. Rule 9(b)(1), Rules of the Sixth Circuit.


John P. Hehman