Unpublished Dispositionwilliam James Kimbrew, Petitioner-appellant, v. United States of America, Respondent-appellee, 816 F.2d 680 (6th Cir. 1987)

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US Court of Appeals for the Sixth Circuit - 816 F.2d 680 (6th Cir. 1987) April 16, 1987

Before MARTIN, WELLFORD and MILBURN, Circuit Judges.


ORDER

Appellee moves to dismiss this appeal as prematurely filed. Appellant has failed to respond.

A review of the record indicates that the judgment of the district court denying appellant's motion to vacate was entered on January 30, 1987. A motion to alter or amend under Rule 59, Federal Rules of Civil Procedure, was timely served on February 9, 1987, tolling the appeals period. Rule 4(a) (4), Federal Rules of Appellate Procedure. Appellant also filed a notice of appeal on February 9, 1987. No ruling on the Rule 59 motion was made prior to the filing of the notice of appeal, until February 23, 1987, when the motion was denied.

Under Rule 4(a) (4), Federal Rules of Appellate Procedure, the motion to alter or amend served ten days after entry of the judgment tolled the appeals period. Rule 4(a) (4), Federal Rules of Appellate Procedure. Notices of appeal filed before the ruling on the time tolling motion have no effect. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 60 (1982).

Therefore, it is ORDERED that the motion to dismiss be granted and that the appeal be dismissed as premature. Rule 9(b) (1), Rules of the Sixth Circuit.