Unpublished Dispositionasad E. Mujihadeen, Aka Ronald Turks, Petitioner-appellant, v. Billy Mcwherter, Warden, Respondent-appellee, 793 F.2d 1292 (6th Cir. 1986)

On October 28, 1985, the district court entered an order dismissing appellant's petition for a writ of habeas corpus. Appellant filed a motion to reconsider that order on November 4, 1985. He then filed a notice of appeal from that order on November 18, 1985. The district court, by notation order, denied the motion to reconsider on November 21, 1985--4 days after the notice of appeal was filed. Appellant has filed no new notice of appeal.

Since post-judgment motions served within 10 days of the judgment are typically construed as motions made ?? Rule 59(e), Federal Rules of Civil Procedure, 9 Moore's Federal Practice p204.12 (2d ed. 1985), it is concluded that appellant's motion to reconsider is a 59(e) motion which tolled the time for filing the notice of appeal. Rule 4(a) (4), Federal Rules of Appellate Procedure, provides that a notice of appeal filed while a time-tolling motion is pending is a nullity and a new notice of appeal must be filed within the prescribed time calculated from the entry of the order disposing of the motion. Griggs v. Provident Discount Co., 459 U.S. 56 (1982).

Therefore, it is ORDERED that this appeal be dismissed for lack of jurisdiction.