816 F2d 682 Stevens v. C Parke

816 F.2d 682

Donald R. STEVENS, Petitioner-Appellant,
Al C. PARKE and Attorney General of Kentucky, Respondents-Appellees.

No. 87-5195.

United States Court of Appeals, Sixth Circuit.

April 17, 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Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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.


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


On January 13, 1987, the district court entered an order dismissing appellant's petition for writ of habeas corpus under 28 U.S.C. Sec. 2254. No time tolling motions were filed. Rule 4(a)(4), Federal Rules of Appellate Procedure. The notice of appeal, filed on February 13, 1987, was one day late.


In response to the show cause order, appellant argues that the Inmate Legal Aide Office misconstrued the time due to Rule 26(c), Federal Rules of Appellate Procedure, which allows three days to be added to a prescribed period when a party is required to act or take an action within a prescribed period of time after the service of a paper and the paper is served by mail. Rule 26(c) is inapplicable to the case herein. The three day extension applies only when a party is required to act within a prescribed period of time after service. The thirty day appeal period is contingent upon the date of entry of judgment, not the date of service. Rule 4(a), Federal Rules of Appellate Procedure. see also Sofarelli Associates, Inc. v. U.S., 716 F.2d 1395, 1396 (Fed. Cir. 1983).


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 National Bank & Trust Co., 717 F.2d 1016 (6th Cir. 1983). This appeal is dismissed for lack of jurisdiction because the notice of appeal was untimely filed. Rule 9(b)(1), Rules of the Sixth Circuit.