772 F.2d 905
Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
KENNETH BROOKS, PETITIONER-APPELLANT,
v.
TED ENGLE, SUPERINTENDENT, RESPONDENT-APPELLEE.
NO. 85-3043
United States Court of Appeals, Sixth Circuit.
8/29/85
S.D.Ohio
APPEAL DISMISSED
ORDER
BEFORE: MARTIN, JONES and WELLFORD, Circuit Judges.
This matter is before the Court upon consideration of the motion for appointment of counsel and responses to this Court's show cause order.
It appears from the record that the judgment was entered November 5, 1984. The notice of appeal filed on January 8, 1985, was 34 days late. Rules 4(a) and 26(a), Federal Rules of Appellate Procedure. The motion for reconsideration filed in the district court on November 20, 1984, was not timely served and did not toll the appeals period. Rule 59(e), Federal Rules of Civil Procedure; and Rule 4(a)(4), Federal Rules of Appellate Procedure. The record reflects that the district court has not ruled on the motion for reconsideration.
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 and Trust Co. of Marquette, 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 it hereby is dismissed for lack of jurisdiction. Rule 9(d)(1), Rules of the Sixth Circuit.
It is further ORDERED that the motion for appointment of counsel be and hereby is denied.