Robert Skagerberg v. State of Oklahoma, 797 F.2d 881, 10th Cir. (1986)
Robert Skagerberg v. State of Oklahoma, 797 F.2d 881, 10th Cir. (1986)
2d 881
5 Fed.R.Serv.3d 1119
In accordance with 10th Cir.R. 9(e) and Fed.R.App.P. 34(a), this appeal came
on for consideration on the briefs and record on appeal.
This is an appeal from an order of the United States District Court for the
Western District of Oklahoma denying petitioner a writ of habeas corpus
pursuant to 28 U.S.C. Sec. 2254 for failure to exhaust his claims. We conclude
we lack jurisdiction to consider this appeal.
The district court entered its order denying Sec. 2254 relief on January 8, 1986.
On January 15, 1986, petitioner filed a single document which he denominated
as a "Motion for Rule 60 Relief, or Appeal." In one order, the district court
denied relief, acknowledged the notice of appeal, denied leave to appeal in
forma pauperis, and granted a certificate of probable cause.
This case presents the problem of how to construe a combined motion for
reconsideration and a notice of appeal. This problem frequently recurs in pro se
actions. In order to resolve the confusion created by this combination document
we grant leave to proceed on appeal in forma pauperis and address the issue of
how we must construe the combination document under the standards set forth
in Fed.R.App.P. 4(a).
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Under Rule 4(a)(4), a timely Rule 59(e) motion tolls the time for filing a notice
of appeal from a district court judgment. Clayton v. Douglas, 670 F.2d 143, 144
(10th Cir.), cert. denied, 457 U.S. 1109, 102 S.Ct. 2911, 73 L.Ed.2d 1319
(1982). A notice of appeal filed while a timely Rule 59(e) motion is pending is
ineffective to confer jurisdiction on a court of appeals. Griggs v. Provident
Consumer Discount Co., 459 U.S. 56, 61, 103 S.Ct. 400, 403, 74 L.Ed.2d 225
(1982). Likewise, a notice of appeal filed before a timely Rule 59(e) motion is
also ineffective to confer jurisdiction. Id.
Accordingly, we conclude that when a timely Rule 59(e) motion and a notice of
appeal are combined in one document the notice of appeal is premature and has
no effect. See Portis v. Harris County, Texas, 632 F.2d 486 (5th Cir.1980)
(Rule 59 motion and notice of appeal were filed in the same document). After
receiving a ruling on the timely motion, the appellant is required to file a new
notice of appeal in accordance with Fed.R.App.P. 4(a)(1).
In this case, the district court's judgment became final for appeal purposes only
after the district court's disposition of the Rule 59(e) motion. Because petitioner
failed to file a new notice of appeal after disposition of the Rule 59(e) motion,
we do not have jurisdiction to consider this appeal. See Browder v. Director,
Dept. of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 560, 54 L.Ed.2d 521
(1978) (filing of a timely notice of appeal is mandatory and jurisdictional).
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