NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Robert G. Doumar, District Judge. (CA-90-1600-N)
Albert Russell Clay, Jr., Appellant Pro Se.
Linwood Theodore Wells, Jr., Assistant Attorney General, for Appellee.
E.D.Va.
DISMISSED.
Before LUTTIG, Circuit Judge, and BUTZNER and CHAPMAN, Senior Circuit Judges.
PER CURIAM:
OPINION
Albert Russell Clay, Jr., noted this appeal from the district court's judgment pending disposition of a timely motion to alter or amend that judgment under Fed. R. Civ. P. 59. Under Fed. R. App. P. 4(a)(4), a notice of appeal filed before disposition of a timely Rule 59 motion is without effect, and a new notice of appeal must be filed within the appeal period measured from entry of the order disposing of the motion. Appellant's timely Rule 59 motion rendered this appeal without effect, and Appellant failed to file a new appeal after disposition of the Rule 59 motion.* Under these circumstances, we lack jurisdiction. See Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982). Accordingly, we deny a certificate of probable cause to appeal and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.
DISMISSED
Even if Clay's informal brief were treated as a new notice of appeal, see Smith v. Barry, 60 U.S.L.W. 4065, 4067 (U.S. 1992), it would be untimely because it was not delivered to prison authorities until after the thirty-day appeal period expired