OpenJurist

859 F2d 923 Vunetich v. Parke

859 F.2d 923

Gary Lee VUNETICH, Petitioner-Appellant Cross-Appellee,
v.
Al PARKE, Warden, Respondent-Appellee Cross-Appellant,

No. 88-5561.

United States Court of Appeals, Sixth Circuit.

Oct. 7, 1988.

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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

ORDER

1

This matter has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit.

2

A review of the record indicates that the district court entered a judgment on May 10, 1988, denying in part and granting in part Mr. Vunetich's petition for a writ of habeas corpus. Petitioner filed his notice of appeal from that order on May 17, 1988. The respondent's Fed.R.Civ.P. 59(e) motion was served and filed on May 20, 1988. This motion was served within the ten day period prescribed by Fed.R.Civ.P. 59(e) as computed by Fed.R.Civ.P. 6(a), and tolled the appeals period. The Rule 59(e) motion was denied on August 15, 1988.

3

This court lacks jurisdiction in the appeal. Fed.R.App.P. 4(a)(1) provides that a notice of appeal filed before the disposition of a timely Rule 59(e) motion "shall have 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...." A timely notice of appeal is mandatory and jurisdictional. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982); Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264 (1978). The running of the appeals period is tolled if any party timely filed in the district court one of the motions specified in Fed.R.App.P. 4(a)(4). See Marrical v. Detroit News, Inc., 805 F.2d 169, 171 (6th Cir.1986) (per curiam); Myers v. Ace Hardware, Inc., 777 F.2d 1099, 1102 (6th Cir.1985). The appellant's notice of appeal filed prior to the disposition of the respondents timely Fed.R.Civ.P. 59(e) motion is premature and without effect.

4

Accordingly, it is ORDERED that the appeal be and is hereby dismissed. Rule 9(b)(1), Rules of the Sixth Circuit.