819 F. 2d 290 - Skorvanek v. McMackin
819 F2d 290 Skorvanek v. McMackin
819 F.2d 290
John Michael SKORVANEK, Petitioner-Appellant,
v.
Norris McMACKIN, Respondent-Appellee.
No. 87-3274.
United States Court of Appeals, Sixth Circuit.
May 27, 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Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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 KENNEDY, JONES and RYAN, Circuit Judges.
ORDER
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Appellee moves to dismiss this appeal as being untimely led. Appellant has not responded to the motion.
The dates relevant to the motion to dismiss are as follows. On January 20, 1987, the district court denied appellant's petition for a writ of habeas corpus (28 U.S.C. Sec. 2254). On February 20, 1987, appellant filed a motion for a certificate of probable cause. The district court granted the certificate of probable cause on February 25, 1987. Appellant then filed a notice of appeal on March 25, 1987. Appellee filed a motion to dismiss on April 2, 1987.
Appellant's motion for a certificate of probable cause clearly evidences an intent to appeal the district court judgment. As such, it can be construed as a notice of appeal. Rule 3(c), Federal Rules of Appellate Procedure. The notice of appeal was due within 30 days of entry of the district court's denial of appellant's petition for a writ of habeas corpus--February 19, 1987. Rule 4(a), Federal Rules of Appellate Procedure. Appellant did not file his notice of appeal until February 20 ,1987, and is, therefore, one day late. He did not seek nor was he granted an extension of time within which to file his notice of appeal. Similarly, the notice of appeal filed on March 25, 1987, was late. The notice of appeal was due within 30 days of entry of the district court's January 20, 1987 order. Appellant did not file his notice of appeal until March 25, 1987, and is, therefore, 34 days late. Rule 4(a), Federal Rules of Appellate Procedure.
Because both the motion for a certificate of probable cause and the notice of appeal were untimely filed, this court is deprived 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'l Bank & Trust Co., 717 F.2d 1016 (6th Cir. 1983).
Accordingly, appellee's motion to dismiss is granted and it is ORDERED that the appeal be and hereby is dismissed. Rule 9(b)(1), Rules of the Sixth Circuit.