Darnell Hopewell v. Gene A. Scroggy, Warden , 826 F.2d 1063 ( 1987 )

826 F.2d 1063

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Darnell HOPEWELL, Petitioner-Appellant,
v.
Gene A. SCROGGY, Warden, et al., Respondents-Appellees.

No. 87-5677.

United States Court of Appeals, Sixth Circuit.

Aug. 21, 1987.

1

Before KEITH and NORRIS, Circuit Judges, and GIBBONS, District Judge.*

ORDER

2

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

3

A review of the record indicates that the judgment of the district court adopting the magistrate's report and recommendation was entered March 30, 1987. A motion for stay of judgment and for rehearing was served on April 6, 1987. A motion served within ten days as computed by Rule 6(a), Federal Rules of Civil Procedure, after entry of judgment seeking reconsideration of a judgment is properly treated as a Rule 59(e), Federal Rules of Civil Procedure, motion to alter or amend judgment. Harcon Barge Co. v. D & G Boat Rentals, Inc., 784 F.2d 665 (5th Cir.) (en banc), cert. denied, --- U.S. ----, 107 S.Ct. 398 (1986); Huff v. Metropolitan Life Ins. Co., 675 F.2d 119 (6th Cir.1982). The motion for rehearing was served within the ten day period and tolled the appeals period. Rule 4(a)(4), Federal Rules of Appellate Procedure. A notice of appeal, application for certificate of probable cause and motion to produce were filed on April 10, 1987. A certificate of probable cause was granted by the district court. On May 21, 1987, an order was filed by the district court directing that a response be filed to the various motions. After consideration of the response, the district court denied the motion for stay. No ruling has been made on the motion for rehearing.

4

Rule 4(a)(4), Federal Rules of Appellate Procedure, 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 (1982); Browder v. Director, Department of Corrections, 434 U.S. 257 (1978).

5

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

*

The Honorable Julia S. Gibbons, U.S. District Judge for the Western District of Tennessee, sitting by designation