Unpublished Dispositionmichael Reese Hopkins, Petitioner-appellant, v. United States of America, Respondent-appellee, 911 F.2d 732 (6th Cir. 1990)

ORDER

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

A review of the record indicates that appellant's 28 U.S.C. § 2255 motion to vacate, set aside and/or correct sentence was denied by order filed January 4, 1990. The judgment was entered January 17, 1990. A motion for reconsideration was served on January 10, 1990, which was within ten days after entry of the decision and is properly treated as a Fed. R. Civ. P. 59(e) time-tolling motion. See Craig v. Lynaugh, 846 F.2d 11, 13 (5th Cir. 1988), cert. denied, 109 S. Ct. 2436 (1989); Kennedy v. City of Cleveland, 797 F.2d 297, 305 (6th Cir. 1986), cert. denied, 479 U.S. 1103 (1987); Huff v. Metropolitan Life Ins. Co., 675 F.2d 119, 122 (6th Cir. 1982). A notice of appeal was filed January 16, 1990. Fed. R. App. P. 4(a) (4) provides that a notice of appeal filed before the disposition of a timely Rule 59 motion shall have no effect. A timely notice of appeal is mandatory and jurisdictional. Osterneck v. Ernst & Whinney, 489 U.S. 169 (1989); Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982) (per curiam). A new notice of appeal must be filed after entry of the ruling on the motion for reconsideration.

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