Kent C. Cross v. Terry L. Morris, Supt. , 869 F.2d 1489 ( 1989 )

869 F.2d 1489

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Kent C. CROSS, Petitioner-Appellant,
v.
Terry L. MORRIS, Supt., Respondent-Appellee.

No. 88-3791.

United States Court of Appeals, Sixth Circuit.

Feb. 8, 1989.

Before MILBURN and BOGGS, Circuit Judges, and CONTIE, Senior Circuit Judge.

ORDER

1

This appeal is before the court upon consideration of a motion for appointment of counsel.

2

A review of the record indicates that the district court's judgment denying the petition for writ of habeas corpus was entered August 15, 1988. Appellant served a Fed.R.Civ.P. 59(e) motion to alter or amend the judgment on August 22, 1988. The timely Rule 59(e) motion tolled the appeals period as prescribed by Fed.R.App.P. 4(a)(4). Marrical v. Detroit News, Inc., 805 F.2d 169, 171 (6th Cir.1986) (per curiam); Myers v. Ace Hardware, Inc., 777 F.2d 1099, 1103 (6th Cir.1985). The August 26, 1988 notice of appeal filed prior to the disposition of the Rule 59(e) motion is premature. Fed.R.App.P. 4(a)(4) 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. Acosta v. Louisiana Dep't of HHR, 478 U.S. 251 (1986) (per curiam); Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982) (per curiam).

3

It is ORDERED that the motion for counsel be denied and the appeal be and hereby is dismissed for lack of jurisdiction. Rule 9(b)(1), Rules of the Sixth Circuit.