Melvin Thomas v. Arthur Tate, Jr. , 865 F.2d 261 ( 1988 )

865 F.2d 261

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Melvin THOMAS, Petitioner-Appellant,
v.
Arthur TATE, Jr., Respondent-Appellee.

No. 88-3830.

United States Court of Appeals, Sixth Circuit.

Dec. 20, 1988.

1

Before MILBURN and ALAN E. NORRIS, Circuit Judges; and RICHARD SUHRHEINRICH, District Judge.*

ORDER

2

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

3

A review of the record indicates that appellant filed a 28 U.S.C. Sec. 2254 habeas corpus petition. The action was dismissed by judgment entered August 17, 1988. A motion for relief from judgment was served on August 25, 1988, and filed on August 26. A motion served within ten days of entry of the judgment is properly construed as a time-tolling Fed.R.Civ.P. 59(e) motion. Harcon Barge Co. v. D & G Boat Rentals, Inc., 784 F.2d 665, 667 (5th Cir.) (en banc), cert. denied, 479 U.S. 930 (1986); Cosgrove v. Smith, 697 F.2d 1125, 1127 (D.C.Cir.1983); Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 40-41 (2d Cir.1982); Huff v. Metropolitan Life Ins. Co., 675 F.2d 119, 122 (6th Cir.1982). A timely Rule 59(e) motion tolls 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, 1102-03 (6th Cir.1985); Peake v. First Nat'l Bank & Trust Co., 717 F.2d 1016, 1018-20 (6th Cir.1983). The September 2, 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 not 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).

4

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 Richard Suhrheinrich, U.S. District Judge for the Eastern District of Michigan, sitting by designation