820 F2d 405 Piccirilli v. Tl Morris

820 F.2d 405

Frank PICCIRILLI, Petitioner-Appellant,
v.
T.L. MORRIS, Supt., Respondent-Appellee.

No. 86-3842.

United States Court of Appeals, Sixth Circuit.

June 12, 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Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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 WELLFORD, MILBURN and NELSON, Circuit Judges.

ORDER


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1

This matter is before the Court upon consideration of the motion for appointment of counsel and leave to proceed in forma pauperis, and response to show cause order.

2

It appears from the record that the final order was entered August 4, 1986. The notice of appeal filed on September 4, 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 Nat. 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. A late notice of appeal cannot serve as a substitute for a motion for extension of time if it fails to allege excusable neglect or good cause. Pryor v. Marshall, 711 F.2d 63 (6th Cir.1983).

4

It is ORDERED that the motion for appointment of counsel and leave to proceed in forma pauperis be denied and the appeal be dismissed for lack of jurisdiction. Rule 9(b)(1), Rules of the Sixth Circuit.