826 F. 2d 1064 - Miller v. Echlin D

Before KEITH and ALAN E. NORRIS, Circuit Judges, and GIBBONS, District Judge.*

This matter is before the court upon consideration of the appellant's response to this court's order directing him to show cause why his appeal should not be dismissed for lack of jurisdiction. Appellant's response states that he is not knowledgeable in the law. After the district court's decision was entered, he filed a motion for appointment of counsel and motion for summary judgment. Later, a fellow inmate advised him to file a notice of appeal.

It appears from the record that the judgment was entered February 4, 1987. The notice of appeal filed on June 11, 1987, was 97 days late. Rules 4(a) and 26(a), Federal Rules of Appellate Procedure. Neither the motion for appointment of counsel nor the motion for summary judgment evinced an intent to appeal. Those documents did not comply with Rule 3(c), Federal Rules of Appellate Procedure, and cannot be construed as notices of appeal.

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'l 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.

Accordingly, it is ORDERED that the appeal be and hereby is dismissed for lack of jurisdiction. Rule 9(b)(1), Rules of the Sixth Circuit.