940 F. 2d 663 - Nited States v. L Mans

Before KENNEDY and MILBURN, Circuit Judges, and ZATKOFF, District Judge*.

On May 30, 1991, following a trial to the court, defendant was found guilty of possession of cocaine with intent to distribute. He filed a notice of appeal from the guilty verdict and has moved to proceed on his appeal in forma pauperis. On July 15, 1991, the clerk entered an order directing defendant to show cause why his appeal should not be dismissed as premature, as it did not appear that he had been sentenced at the time he filed the notice of appeal.

Defendant responded to the show cause order by asserting that he intended to appeal from the January 4, 1991 order of the district court dismissing his pro se habeas corpus petition. The notice of appeal, however, is filed in the criminal action, not in the habeas corpus action.

Defendant's appeal, an appeal of an order entered in the criminal action, must be dismissed as premature. The final, appealable order in a criminal action is the judgment of sentence. United States v. Bratcher, 833 F.2d 69, 71 (6th Cir.1987), cert. denied, 484 U.S. 1030 (1988).

Assuming defendant's appeal could be considered an appeal of the order dismissing the habeas corpus petition, it is untimely. Fed.R.App.P. 4(a) and 26(a). The failure of defendant to file a timely notice of appeal deprives this court of jurisdiction. See Baker v. Raulie, 879 F.2d 1396 (6th Cir.1989) (per curiam).

It therefore is ORDERED that this appeal is dismissed sua sponte for lack of jurisdiction. Defendant's motion to proceed in forma pauperis is denied as moot.