Isreal Damien-Adonis Gambino v. Robert Brown , 798 F.2d 1414 ( 1986 )

798 F.2d 1414

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Isreal Damien-Adonis GAMBINO, Petitioner-Appellant,
v.
Robert BROWN, Respondent-Appellee.

No. 86-1323.

United States Court of Appeals, Sixth Circuit.

July 22, 1986.

Before JONES and MILBURN, Circuit Judges, and CONTIE, Senior Circuit Judge.

ORDER

1

This matter is before the Court for disposition of this Court's order of June 11, 1986, to show cause why this appeal should not be dismissed as untimely filed. Appellant has not responded to the show cause order.

2

The record reflects that the order and judgment which dismissed appellant's petition for a writ of habeas corpus was entered October 31, 1985. On November 5, 1985, appellant served a motion to reconsider; that motion tolled the time for filing the notice of appeal for 30 days after disposition of the motion. Rule 4(a)(4), Federal Rules of Appellate Procedure; Myers v. Ace Hardware, 777 F.2d 1099 (6th Cir. 1985). The notice of appeal was due January 16, 1986--30 days after the district court order of December 17, 1985, which denied the motion to reconsider; Rule 4(a)(4), Federal Rules of Appellate Procedure. The notice of appeal was filed March 10, 1986--53 days late.

3

Compliance with Rule 4(a), Federal Rules of Appellate Procedure, is a mandatory jurisdictional requirement 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(c), Federal Rules of Appellate Procedure, specifically provides that this Court enlarge the time in which the notice of appeal is required to be filed.

4

Because appellant failed to file a timely notice of appeal, this Court is deprived of jurisdiction over the matter.

5

Therefore, it it ORDERED that this appeal be and hereby is dismissed.