stanley-joseph-callis-v-edward-w-murray-director-virginia-department-of , 908 F.2d 966 ( 1990 )

908 F.2d 966
Unpublished Disposition

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Stanley Joseph CALLIS, Petitioner-Appellant,
v.
Edward W. MURRAY, Director, Virginia Department of
Corrections, Attorney General of the Commonwealth
of Virginia, Respondents-Appellees.
Stanley Joseph CALLIS, Petitioner-Appellant,
v.
Edward W. MURRAY, Director, Virginia Department of
Corrections, Attorney General of the Commonwealth
of Virginia, Respondents-Appellees.

Nos. 90-6763, 90-6810.

United States Court of Appeals, Fourth Circuit.

Submitted April 20, 1990.
Decided July 16, 1990.
Rehearing Denied Sept. 14, 1990.

Stanley Joseph Callis, appellant pro se.

Robert B. Condon, Assistant Attorney General, Richmond, Va., for appellees.

E.D.Va.

DISMISSED.

Before SPROUSE and WILKINS, Circuit Judges, and BUTZNER, Senior Circuit Judge.

PER CURIAM:

1

Stanley J. Callis filed two notices of appeal in his attempt to appeal the district court's order refusing relief pursuant to 28 U.S.C. Sec. 2254. We dismiss both appeals.

2

Following the entry of judgment, Callis noted his appeal. (No. 90-6763). He also moved, within ten days of entry of judgment, for the district court to reconsider its order. His motion for reconsideration is properly construed as a motion under Rule 59, Fed.R.Civ.P. See Dove v. CODESCO, 569 F.2d 807, 809 (4th Cir.1978).

3

Rule 4(a)(4), Fed.R.App.P., provides: "A notice of appeal filed before the disposition of [a Rule 59 motion] ... shall have 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." Accordingly, because Callis's notice of appeal was filed prior to disposition of his Rule 59 motion, we are without jurisdiction over his appeal in No. 90-6763. See Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982).

4

Following the denial of the Rule 59 motion, Callis timely noted an appeal (No. 90-6810), again seeking to appeal the district court's order refusing habeas corpus relief. Our review of the record and the district court's opinion discloses that this appeal is without merit. We accordingly dismiss the appeal on the reasoning of the district court. Callis v. Murray, C/A No. 89-740-R (E.D.Va. Jan. 25, 1990).

5

We deny a certificate of probable cause to appeal in both cases. 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.

6

DISMISSED.