Ronald Mcgill, Petitioner-appellant, v. State of North Carolina, Respondent-appellee, 870 F.2d 655 (4th Cir. 1989)

Ronald McGill appeals the district court's dismissal of his application for habeas corpus relief under 28 U.S.C. § 2254. We dismiss the appeal for lack of jurisdiction.

Within ten days of the dismissal, McGill asked the district court to rehear the case. Because his request questioned the correctness of the district court's judgment and was filed within ten days of that judgment, it is construed as a motion to alter or amend the judgment pursuant to Fed. R. Civ. P. 59(e). Dove v. CODESCO, 569 F.2d 807, 809 (4th Cir. 1978). McGill filed his notice of appeal before the district court acted on his request. Thus, his notice of appeal became a nullity and, therefore, we lack jurisdiction to hear his appeal. See Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982); Fed. R. App. P. 4(a) (4).

Accordingly, we deny a certificate of probable cause to appeal, dismiss the appeal for lack of jurisdiction, and return the case to the district court for a ruling on McGill's motion for rehearing. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not significantly aid the decisional process.

DISMISSED.