OpenJurist

19 F3d 18 Helton v. Morgan

19 F.3d 18

William Mahon HELTON, Jr., Petitioner-Appellant,
v.
Jack MORGAN, Warden, Respondent-Appellee.

No. 92-6713.

United States Court of Appeals, Sixth Circuit.

Aug. 19, 1993.

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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: MARTIN and SUHRHEINRICH, Circuit Judges; and CELEBREZZE, Senior Circuit Judge.

ORDER

1

This matter has been referred to a panel of the court for initial consideration of appellate jurisdiction. A review of the record indicates that the final order of the district court was entered December 1, 1992, and that appellant served a Fed.R.Civ.P. 59 motion to alter or amend on December 8. Appellant filed a notice of appeal on December 9 and the motion to alter or amend was denied on February 18, 1993.

2

This court lacks jurisdiction in the appeal. The Fed.R.Civ.P. 59 motion was served within 10 days of the entry of the decision and tolled the appeal period as provided by Fed.R.App.P. 4(a)(4). McMahon v. Libbey-Owens-Ford Co., 870 F.2d 1073, 1078 n. 1 (6th Cir.1989) (per curiam). A notice of appeal filed before disposition of a time-tolling motion has no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion. Osterneck v. Ernst & Whinney, 489 U.S. 169, 173-74 (1989); Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982) (per curiam). The notice of appeal was filed prior to the ruling on the motion to alter or amend; therefore, this court lacks jurisdiction in this appeal. No new notice of appeal has been filed after the entry of the order denying reconsideration.

3

Accordingly, it is ORDERED that the appeal is dismissed for lack of jurisdiction. Rule 8(a), Rules of the Sixth Circuit.