Unpublished Disposition, 902 F.2d 40 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 902 F.2d 40 (9th Cir. 1989)

George E. MYERS, Petitioner-Appellant,v.William L. CALLAHAN, Respondent-Appellee.George E. MYERS, Petitioner-Appellant,v.William L. CALLAHAN, Respondent-Appellee.

Nos. 89-35344, 89-35351.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 8, 1989.*Decided May 8, 1990.

Before CANBY, WIGGINS and FERNANDEZ, Circuit Judges.


MEMORANDUM**

Appellant George A. Myers contests the denial of two separate habeas corpus petitions pursuant to 28 U.S.C. § 2254. In Myers v. Callahan, No. 89-35351, (Myers I) appellant seeks to overturn his 1986 conviction for robbery due to the alleged constitutional infirmity of his guilty plea. In Myers v. Callahan, No. 89-35344, (Myers II) appellant seeks to invalidate his sentence for that robbery because it allegedly denied him due process. We have no jurisdiction over appellant's appeals.

* Appellant filed his habeas petition for Myers I on May 10, 1988. The district court entered summary judgment in favor of appellee on March 14, 1989. On March 24, 1989, appellant filed a motion to reconsider concurrently with a request for a certificate of probable cause. The district court denied the former but issued the latter on May 5, 1989. Appellant did not file a formal notice of appeal in Myers I. See Fed.R.App. 4(a) (1).

Appellant filed his habeas petition for Myers II on February 13, 1989. The district court dismissed this action sua sponte on March 13, 1989. On March 21, 1989, appellant filed a motion for reconsideration concurrently with a request for a certificate of probable cause. At the same time, appellant filed a notice of appeal. On May 3, 1989, the district court denied the former but issued the latter. In Myers II, appellant did not refile a new notice of appeal after the district court denied his motion to reconsider.

II

We review a district court's denial of habeas corpus relief de novo. McKenzie v. Risley, 842 F.2d 1525, 1531 (9th Cir.) (en banc), cert. denied, 109 S. Ct. 250 (1988).

A timely filing of a notice of appeal is a jurisdictional prerequisite to the hearing of an appeal. Houston v. Lack, 108 S. Ct. 2379, 2382 (1988). In both cases, appellant filed a motion to reconsider. We consider such a motion as a motion to alter or amend the judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. Shah v. United States, 878 F.2d 1156, 1158 (9th Cir. 1989). Rule 4(a) (4) required appellant to file a notice of appeal within thirty days after the district court denied his Rule 59(e) motion. Appellant did not do so for either appeal.

In both Myers I and Myers II, appellant failed to file anything which could be construed as a notice of appeal following the district court's denial of his Rule 59(e) motion. We thus have no jurisdiction over either appeal.

III

We dismiss appellant's appeals in Myers I and Myers II.