Michael Lee Sammons, Petitioner-appellant, v. United States of America, Respondent-appellee, 956 F.2d 270 (6th Cir. 1992)

ORDER

This matter has been referred to a panel of the court. A review of the record indicates that the appellant filed a motion for Fed. R. Crim. P. 35(b) relief or, in the alternative, a petition for relief under 28 U.S.C. § 2255. By order and judgment entered June 28, 1991, the district court denied the relief sought under Rule 35(b) and 28 U.S.C. § 2255. On July 5, appellant filed a motion to reconsider the denial of relief under 28 U.S.C. § 2255 and filed a notice of appeal (appeal No. 91-6078) from the denial of the Rule 35(b) motion. Reconsideration was denied by order filed August 15, 1991. Appellant appealed the denial of reconsideration on August 26, 1991 (appeal No. 91-6079).

This court lacks jurisdiction in appeal No. 91-6078. The motion for reconsideration was served within ten days and tolled the appeal period. See Fed. R. App. P. 4(a) (4); Moody v. Pepsi-Cola Metro. Bottling Co., 915 F.2d 201, 206 (6th Cir. 1990); Kennedy v. City of Cleveland, 797 F.2d 297, 304-05 (6th Cir. 1986), cert. denied, 479 U.S. 1103 (1987). The appellant's notice of appeal filed on July 5, 1991, is premature.

Fed. R. App. P. 4(a) (4) provides that a notice of appeal filed before the disposition of a time-tolling motion shall have no effect. A timely notice of appeal is mandatory and jurisdictional. Osterneck v. Ernst & Whinney, 489 U.S. 169, 173-74 (1989); Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982) (per curiam). A new notice of appeal must be filed after entry of the ruling on the motion for reconsideration.

Reconsideration was denied by order entered August 15, 1991. A notice of appeal was filed from that order on August 26, 1991, and docketed as appeal No. 91-6079. An order denying a motion for reconsideration is not appealable. Walker v. Mathews, 546 F.2d 814, 817 n. 1 (9th Cir. 1976). However, because the motion for reconsideration tolled the appeal period, the notice of appeal may be treated as an appeal from the final decision entered June 28, 1991. Peabody Coal Co. v. Local Union Nos. 1734, 1508 & 1548, UMW, 484 F.2d 78, 81 (6th Cir. 1973).

Accordingly, it is ORDERED that appeal No. 91-6078 be, and it hereby is, dismissed for lack of jurisdiction as premature, and appeal No. 91-6079 is treated as an appeal from the June 28, 1991, decision. Rule 8(a), Rules of the Sixth Circuit.