Whittaker v. United States , 84 F. App'x 609 ( 2003 )

ORDER

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 on the basis of a late notice of appeal. The appellant responded by stating that he is not knowledgeable in the law; that he has relied on the assistance and advice of other inmates; and that there have been delays as a result of being transferred and as a result of being unable to communicate with an inmate who was assisting him.

It appears from the documents before the court that the district court’s decision dismissing the case was entered December 4, 2002. The Fed.R.Civ.P. 60(b) motion for relief filed on April 23, 2003 did not toll the appeal period. See Fed. R.App. P. 4(a)(4)(A)(vi). The motion was denied by order entered on June 23, 2003. An application for a certificate of appealability was filed on July 23, 2003 and denied by order entered August 18, 2003. The notice of appeal dated August 23, 2003 and filed on August 29, 2003 from the June 23, 2003 order was late. See Fed. R.App. P. 4(a) and 26(a).

The failure of appellant to timely file a notice of appeal deprives an appellate court of jurisdiction. Compliance with Fed. R.App. P. 4(a) is a mandatory and jurisdictional prerequisite which this court can neither waive nor extend. Baker v. Raulie, 879 F.2d 1396, 1398 (6th Cir.1989) (per curiam). Fed. R.App. P. 26(b) specifically provides that this court may not enlarge the time for filing a notice of appeal.

Accordingly, it is ordered that the appeal is dismissed for lack of jurisdiction.

It is further ordered that the case is remanded to the district court for the limited purpose of filing the July 23, 2003 application for a certificate of appealability as a notice of appeal and forwarding it to this court as provided by Fed. R.App. P. 3(d)(1) for filing as a new notice of appeal. See Fed. R.App. P. 10(e).