Weldon E. Wiggins, Plaintiff-appellant, v. California Department Corrections Director, California Boardof Prison Terms, Defendants-appellees, 943 F.2d 56 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 943 F.2d 56 (9th Cir. 1991)

Submitted Aug. 23, 1991. *Decided Sept. 6, 1991



Weldon E. Wiggins, a California state prisoner, appeals pro se from the district court's dismissal of his 28 U.S.C. § 2254 habeas corpus petition. We dismiss for lack of appellate jurisdiction.

The requirement of a timely notice of appeal is mandatory and jurisdictional. See Fed. R. App. P. 4(a); Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264 (1978). A notice of appeal is jurisdictionally ineffective if it is filed before the disposition of a timely motion brought pursuant to Fed. R. Civ. P. 59(e). See Tripati v. Henman, 845 F.2d 205, 206 (9th Cir. 1988). Thus, this court has held that when a litigant files his notice of appeal one day and then files a timely Rule 59(e) motion on the next day, the notice of appeal is "not merely defective; it [is] a nullity." Id. (quotation omitted).

Here, Wiggins filed his notice of appeal and Rule 59(e) motion simultaneously. Under Tripati, his notice of appeal is a nullity. See id. Accordingly, this court does not have jurisdiction over Wiggins's appeal. Dismissal of this appeal, however, does not affect Wiggins's Rule 59(e) motion, which is pending in the district court. See id. at 205-06.



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and 9th Cir.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 9th Cir.R. 36-3