904 F. 2d 708 - United States v. Jones

Before KEITH and ALAN E. NORRIS, Circuit Judges, and JOHN W. POTTER, District Judge*.

This matter is before the court upon consideration of the appellant's response to this court's January 25, 1990, order directing him to show cause why his appeal should not be dismissed for lack of jurisdiction because of a late notice of appeal. His response stated that his transfer from Fort Worth, Texas, to Elreno, Oklahoma, prevented him from timely filing his notice of appeal.

It appears from the record that the order was entered on September 22, 1989. The notice of appeal filed on October 11, 1989, was nine days late. Fed.R.App.P. 4(b) and 26(a).

The failure of an appellant to timely file a notice of appeal deprives an appellate court of jurisdiction. Compliance with Fed.R.App.P. 4(b) is a mandatory and jurisdictional prerequisite which this court can neither waive nor extend. United States v. Hatfield, 815 F.2d 1068, 1073 (6th Cir.1987); United States v. Merrifield, 764 F.2d 436, 436-37 (5th Cir.1985) (per curiam). Fed.R.App.P. 26(b) specifically provides that this court cannot enlarge the time for filing a notice of appeal.

Accordingly, it is ORDERED that the appeal be, and it hereby is, dismissed for lack of jurisdiction without prejudice to appellant's right to seek an extension of time provided by Fed.R.App.P. 4(b). Rule 9(b)(1), Rules of the Sixth Circuit.