Unpublished Disposition, 902 F.2d 1578 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 902 F.2d 1578 (9th Cir. 1989)

Victor BAGHA, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee.

No. 89-56154.

United States Court of Appeals, Ninth Circuit.

Submitted May 7, 1990.* Decided May 16, 1990.



Victor Bagha appeals pro se from the district court's order denying his motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. We dismiss the appeal for lack of jurisdiction.

* On June 24, 1986, Bagha was convicted of twenty-six counts of conspiracy, bank fraud, and making false statements in connection with loan applications. For these crimes, Bagha was sentenced to eighteen years of imprisonment and five years of probation. Bagha appealed his conviction to this court on August 11, 1986 and we affirmed on August 26, 1988. See United States v. Bagha, No. 86-5231, slip op. (9th Cir. Aug. 26, 1988) (unpublished memorandum disposition).

Both before and after we affirmed his conviction on direct appeal, however, Bagha filed numerous collateral motions and appeals. On October 30, 1987, he filed a motion under 28 U.S.C. § 2255 to vacate his sentence. A few days later, he moved for a reduction of his sentence under Federal Rule of Criminal Procedure 35(b). On December 28, 1987, both motions were denied because of the pendency of his appeal. Bagha then appealed from the denial of his Rule 35(b) motion, but the appeal was dismissed by this court.

On November 15, 1988, after his conviction had been affirmed on appeal, Bagha filed a second Rule 35(b) motion. The district court denied this motion on the merits on January 10, 1989. Bagha appealed from the order denying his second Rule 35(b) motion. On the same day, however, Bagha moved for reconsideration in the district court. The district court found that it no longer had jurisdiction to reconsider its order, however, since Bagha had already filed his notice of appeal. The appeal from the denial of the Rule 35(b) motion is still pending before this court.

Less than two months after filing his second Rule 35(b) motion, Bagha brought the instant motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, alleging ineffective assistance of counsel. The government filed its opposition to this motion on March 1, 1989. The district court then ordered Bagha to show cause why his section 2255 motion should not be denied because of the pending Rule 35(b) appeal. Bagha responded on August 16, 1989. Bagha filed his notice of appeal from the anticipated denial of his section 2255 motion on September 13, 1989. The district court did not issue its order denying the motion until October 5, 1989, however. Bagha did not file a subsequent notice of appeal from the order denying his motion.


The government asserts that this court is without jurisdiction to hear this appeal because Bagha failed to file a timely notice of appeal. We agree.

The time for filing a notice of appeal from the denial of a section 2255 motion is governed by Federal Rule of Appellate Procedure 4(a). Rule 4(a) (1) provides, in relevant part, that "the notice of appeal ... shall be filed with the clerk of the district court within 30 days after the date of entry of the judgment or order appealed from; but if the United States ... is a party, the notice of appeal may be filed by any party within 60 days after such entry" (emphasis added). Rule 4(a) (2) states that " [e]xcept as provided in (a) (4) of this Rule 4, a notice of appeal filed after the announcement of a decision or order but before the entry of the judgment or order shall be treated as filed after such entry and on the day thereof." There is no such provision for a notice of appeal filed before the announcement of a decision or order.

Here, Bagha filed his notice of appeal on September 13, 1989. This was three weeks before the district court announced its decision to deny his motion and entered its order stating the same on October 5, 1989. A premature notice of appeal such as this leaves us without jurisdiction to hear this appeal. See Hollywood v. City of Santa Maria, 886 F.2d 1228, 1230 (9th Cir. 1989) (notice of appeal filed before decision on new trial motion is without effect). Accordingly, we dismiss this appeal.



The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a), Ninth Circuit R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3