Preston Andre Traylor, Petitioner-appellant, v. United States of America, Respondent-appellee, 12 F.3d 214 (6th Cir. 1993)

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US Court of Appeals for the Sixth Circuit - 12 F.3d 214 (6th Cir. 1993)

Nov. 22, 1993


Before: MARTIN and RYAN, Circuit Judges; and MATIA, District Judge.* 

ORDER

This matter has been referred to a panel of the court for initial consideration of appellate jurisdiction.

A review of the record indicates that the judgment of the district court was entered July 14, 1993, denying appellant's 28 U.S.C. § 2255 motion. Appellant filed a motion for reconsideration on July 22 and appealed on August 18, 1993.

This court lacks jurisdiction in this appeal. The motion for reconsideration filed within ten days of entry of the judgment tolled the appeal period as provided by Fed. R. App. P. 4(a) (4). Craig v. Lynaugh, 846 F.2d 11, 13 (5th Cir. 1988), cert. denied, 490 U.S. 1093 (1989). A notice of appeal filed before disposition of a time-tolling motion has no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion. 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). No ruling has been made by the district court on the motion for reconsideration.

Accordingly, it is ORDERED that the appeal is dismissed for lack of jurisdiction. Rule 8(a), Rules of the Sixth Circuit.

 *

The Honorable Paul R. Matia, U.S. District Judge for the Northern District of Ohio, sitting by designation