956 F. 2d 270 - Smiley v. C Parke

956 F2d 270 Smiley v. C Parke

956 F.2d 270

Monte SMILEY, Petitioner-Appellant,
v.
Al C. PARKE, Warden, Respondent-Appellee.

No. 92-5020.

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NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

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 was entered November 27, 1991. A motion for reconsideration was served and filed on December 6, 1991. Such motion was served within ten days of the decision and tolled the appeal period. See Fed.R.App.P. 4(a)(4); Moody v. Pepsi-Cola Metro. Bottling Co., 915 F.2d 201, 206 (6th Cir.1990); Kennedy v. City of Cleveland, 797 F.2d 297, 304-05 (6th Cir.1986), cert. denied, 479 U.S. 1103 (1987). The appellant's notice of appeal was filed on December 27, 1991.

3

Fed.R.App.P. 4(a)(4) provides that a notice of appeal filed before the disposition of a time-tolling motion shall have no effect. A timely notice of appeal is mandatory and jurisdictional. 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). A new notice of appeal must be filed after entry of the ruling on the motion for reconsideration.

4

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

*

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