921 F2d 277 United States v. Diegel

921 F.2d 277

UNITED STATES of America, Plaintiff-Appellee,
Earl Basil DIEGEL, Defendant-Appellant.

Nos. 90-2188, 90-2213.

United States Court of Appeals, Sixth Circuit.

Dec. 4, 1990.

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

Before DAVID A. NELSON and RYAN, Circuit Judges, and LIVELY, Senior Circuit Judge.


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The defendant, Earl B. Diegel, appeals the 27 month sentence imposed as a result of his plea of guilty to extortion in violation of 18 U.S.C. Sec. 876. For purposes of 28 U.S.C. Sec. 1291, the final judgment was entered on June 13, 1990 when the judgment of conviction and sentence was entered on the district court's docket sheet. The defendant filed his notice of appeal in Case No. 90-2188 on October 22, 1990. He filed a second notice of appeal on November 1, 1990 in Case No. 90-2213.


Pursuant to the provisions of Rule 4(b), Fed.R.App.P., the defendant had ten (10) days from entry of judgment, i.e., until June 25, 1990, to file his notice of appeal. The notices of appeal filed on October 22, 1990, and on November 1, 1990 were not filed within that time period. The defendant has submitted a memorandum with his appeal in Case No. 90-2188 indicating that he was never advised of his right to file an appeal.


Timely filing of a notice of appeal is a mandatory and jurisdictional prerequisite which this Court can neither waive nor extend. Browder v. Director, Department of Corrections of Illinois, 434 U.S. 257, 264 (1978); United States v. Hatfield, 815 F.2d 1068, 1073 (6th Cir.1987). Fed.R.App.P. 4(b) allows the district court, upon a showing of excusable neglect, to extend the time for a criminal appeal provided the motion to extend is filed within 40 days of the judgment. Pryor v. Marshall, 711 F.2d 63 (6th Cir.1983). The defendant's memorandum in Case No. 90-2188, even if construed as a motion to extend, was not filed within that time period.


It is therefore ORDERED that the defendant's appeals are dismissed sua sponte for lack of jurisdiction. Rule 9(b)(1), Local Rules of the Sixth Circuit. The defendant's motion to proceed in forma pauperis and motion for appointment of counsel are dismissed as moot. This order is without prejudice to any remedies the defendant may have under 28 U.S.C. Sec. 2255.