816 F2d 681 Maclin v. C Davis

816 F.2d 681

John Henry MACLIN, Petitioner-Appellant,
v.
Herman C. DAVIS, Warden, (Now Billy W. Compton, Warden),
Respondent-Appellee.

No. 86-6193.

United States Court of Appeals, Sixth Circuit.

April 22, 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Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

Before MERRITT and NELSON, Circuit Judges, and CONTIE, Senior Circuit Judge.

ORDER


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1

This matter is before the Court upon consideration of the appellant's motion for appointment of counsel, appellant's brief, and appellee's brief. Contained in the appellee's brief was a request to dismiss the appeal for lack of jurisdiction due to a late filed notice of appeal. Appellant has not responded to the request to dismiss.

2

A review of the record indicates that the habeas corpus petition was filed September 2, 1986, but that the court directed that the clerk "not issue process or serve any papers until further ordered by the court." The judgment dismissing the habeas corpus petition was entered September 9, 1986. The Rule 59(e), Federal Rules of Civil Procedure, motion for reconsideration was timely served on September 12, 1986, and filed on September 15, 1986. This timely served Rule 59(e), Federal Rules of Civil Procedure, motion tolled the appeals period. Rule 4(a)(4), Federal Rules of Appellate Procedure. Reconsideration was denied by order entered September 30, 1986. The notice of appeal filed October 31, 1986, was one day late. Rules 4(a) and 26(a), Federal Rules of Appellate Procedure.

3

The failure of an appellant to timely file a notice of appeal deprives an appellate court of jurisdiction. Compliance with Rule 4(a), Federal Rules of Appellate Procedure, is a mandatory and jurisdictional prerequisite which this Court can neither waive nor extend. Peake v. First National Bank & Trust Co., 717 F.2d 1016 (6th Cir.1983). Rule 26(b), Federal Rules of Appellate Procedure, specifically provides that this Court cannot enlarge the time for filing a notice of appeal.

4

It is ORDERED that the motion for appointment of counsel be denied and the appeal be dismissed for lack of jurisdiction. Rule 8(a)(1), Rules of the Sixth Circuit.