Preston Andre Traylor v. United States

12 F.3d 214, 1993 U.S. App. LEXIS 36641, 1993 WL 483224

• Court: Court of Appeals for the Sixth Circuit
• Decided: November 22, 1993
• Docket: 93-6157
• Status: Unpublished

Opinion

12 F.3d 214

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Preston Andre TRAYLOR, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.

No. 93-6157.

United States Court of Appeals, Sixth Circuit.

Nov. 22, 1993.

Before: MARTIN and RYAN, Circuit Judges; and MATIA, District Judge.*

ORDER

This matter has been referred to a panel of the court for initial consideration of appellate jurisdiction.

A review of the record indicates that the judgment of the district court was entered July 14, 1993, denying appellant's 28 U.S.C. Sec. 2255 motion. Appellant filed a motion for reconsideration on July 22 and appealed on August 18, 1993.

This court lacks jurisdiction in this appeal. The motion for reconsideration filed within ten days of entry of the judgment tolled the appeal period as provided by Fed.R.App.P. 4(a)(4). Craig v. Lynaugh, 846 F.2d 11, 13 (5th Cir.1988), cert. denied, 490 U.S. 1093 (1989). A notice of appeal filed before disposition of a time-tolling motion has 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. 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). No ruling has been made by the district court on the motion for reconsideration.

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

* The Honorable Paul R. Matia, U.S. District Judge for the Northern District of Ohio, sitting by designation