956 F2d 269 Kaylor v. W Reynolds

956 F.2d 269

Wesley Vaughn KAYLOR, Petitioner-Appellant,
v.
W. Jeff REYNOLDS, Commissioner; Howard Carlton, Warden,
Respondents-Appellees.

No. 92-5079.

United States Court of Appeals, Sixth Circuit.

Feb. 25, 1992.

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.


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1

Before RYAN and SUHRHEINRICH, Circuit Judges, and CHURCHILL, Senior District Judge.*

ORDER

2

This matter has been referred to a panel of the court. A review of the record indicates that the final order of the district court dismissing the habeas corpus action was entered November 25, 1991. On December 19, 1991, appellant served a motion in which he sought rehearing or, in the event such motion was late, for such to be treated as a notice of appeal. Rehearing was denied on December 30, 1991. Appellant appealed on January 14, 1992, from the order denying rehearing.

3

An order denying reconsideration or rehearing of a decision is not appealable. Walker v. Mathews, 546 F.2d 814, 817 n. 1 (9th Cir.1976). However, the notice of appeal from such an order can be treated as an appeal from the final decision where the motion tolled the appeal period. See Peabody Coal Co. v. Local Union Nos. 1734, 1508 & 1548, UMW, 484 F.2d 78, 81 (6th Cir.1973). The motion for rehearing in the instant appeal was not served within the ten-day period provided by Fed.R.Civ.P. 59 and failed to toll the appeal period as provided by Fed.R.App.P. 4(a)(4). See Pinion v. Dow Chem., 928 F.2d 1522, 1525 (11th Cir.), cert. denied, 112 S.Ct. 438 (1991).

4

Accordingly, it is ORDERED that the appeal be, and it hereby is, dismissed. Rule 8(a), Rules of the Sixth Circuit. Although the instant appeal was taken from a nonappealable order, the late motion for rehearing asked that such document be treated as a notice of appeal if it was filed late. Such document evinced appellant's intent to appeal the November 25, 1991, final decision and can be treated as a notice of appeal from such. Accordingly, the district court is directed to file the motion for rehearing as a notice of appeal. See Fed.R.App.P. 10(e). This court will advise the parties of the new appeal number at a later date.

*

The Honorable James P. Churchill, Senior U.S. District Judge for the Eastern District of Michigan, sitting by designation