Unpublished Dispositionervin Russell Sims, Petitioner-appellant, v. Dale E. Foltz, Warden, Respondent-appellee, 811 F.2d 607 (6th Cir. 1986)

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US Court of Appeals for the Sixth Circuit - 811 F.2d 607 (6th Cir. 1986) Dec. 16, 1986

Before JONES and MILBURN, Circuit Judges, and CONTIE, Senior Circuit Judge.


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

Appellant is appealing the June 4, 1986 judgment dismissing his petition for a writ of habeas corpus. On June 16, he served a motion to vacate judgment requesting the same relief as that in his original petition. Such a motion is properly construed as a motion to alter or amend pursuant to Rule 59(e), Federal Rules of Civil Procedure; Hull v. Metropolitan Life Insurance Co., 675 F.2d 119 (6th Cir. 1982). A timely Rule 59(e) motion tolls the time for filing a notice of appeal. When the motion is disposed of, a new notice of appeal must be filed. Rule 4(a) (4), Federal Rules of Appellate Procedure; Myers v. Ace Hardware, Inc., 777 F.2d 1099 (6th Cir. 1985). Appellant's notice of appeal filed on June 18, 1986, before the district court disposed of the motion to vacate judgment, is of no effect. The Court is without jurisdiction to entertain this appeal.

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