871 F.2d 1089
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.David Gene CULLEN, Defendant-Appellant.
No. 89-3116.
United States Court of Appeals, Sixth Circuit.
April 19, 1989.

1
Before RYAN and ALAN E. NORRIS, Circuit Judges, and JEROME TURNER, District Judge.*

ORDER

2
This matter is before the Court upon consideration of the defendant's response to this Court's March 3, 1989 order directing him to show cause why this appeal should not be dismissed for lack of appellate jurisdiction.


3
The defendant entered a plea of guilty to charges of theft from interstate shipment and failure to appear.  The judgment and commitment order was entered on the district court's docket sheet on January 10, 1989.  The defendant, acting pro se, filed a notice of appeal on January 27, 1989.


4
Counsel for the defendant responded to the show cause order and concedes that this appeal is untimely.  The defendant argues that he was unaware of the filing requirements and alleges excusable neglect for failure to file a timely appeal.


5
Rule 4(b), Fed.R.App.P., provides that a notice of appeal in a criminal action must be filed within ten days from the entry of judgment.  Timely filing of a notice of appeal is a mandatory and jurisdictional prerequisite which this Court can neither waive nor extend, Peake v. First National Bank & Trust Co., 717 F.2d 1016, 1019 (6th Cir.1983);  see also Browder v. Director, Department of Corrections of Illinois, 434 U.S. 257, 264 (1978).  Since the defendant has neither sought nor received an extension of time from the district court, his appeal must be dismissed for lack of jurisdiction.


6
This matter is therefore ORDERED dismissed.  Rule 9(b)(1), Rules of the Sixth Circuit.  This order does not preclude any further relief under 28 U.S.C. Sec. 2255.



*
 The Honorable Jerome Turner, U.S. District Judge for the Western District of Tennessee, sitting by designation


