Ronald Charles Wagener, Petitioner-appellant, v. Edward W. Murray, Respondent-appellee, 953 F.2d 641 (4th Cir. 1992)

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US Court of Appeals for the Fourth Circuit - 953 F.2d 641 (4th Cir. 1992) Submitted Dec. 5, 1991. Decided Jan. 14, 1992

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk, No. CA-91-232-N, J. Calvitt Clarke, Jr., Senior District Judge.

Ronald Charles Wagener, petitioner pro se.

Richard Bain Smith, Assistant Attorney General, Richmond, Va., for appellee.

E.D. Va.





Ronald Charles Wagener noted this appeal from the district court's judgment pending disposition of a timely motion to alter or amend that judgment. We deny a certificate of probable cause to appeal and dismiss the appeal as premature.

Under Fed. R. App. P. 4(a) (4), a notice of appeal filed before disposition of a timely Fed. R. Civ. P. 50(b), 52(b), or 59 motion is without effect, and a new notice of appeal must be filed within the appeal period measured from entry of the order disposing of the motion. This Court construes a motion served within ten days of entry of judgment which calls into question the correctness of that judgment as a Rule 59 motion, however the motion may be formally styled. Dove v. CODESCO, 569 F.2d 807, 809 (4th Cir. 1978). Under Dove and Fed. R. App. P. 4(a) (4), appellant's postjudgment motion invalidated his notice of appeal and requires dismissal of this appeal. See Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982). Appellant may file a new notice of appeal within the appeal period measured from disposition of his motion.

We deny Wagener's motion to reconsider the denial of his motion for release pending disposition of this appeal. His motion for expedited consideration is rendered moot by our disposition of his appeal. We deny the motion for sanctions because we lack jurisdiction over the appeal. We decline to impose sanctions on Wagener as suggested by the respondent. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.

The plaintiff has filed a letter which he asks to be considered with the record as already filed. We have reviewed the letter and find no reason to alter our prior opinion herein.