ernest-jewette-jr-v-edward-w-murray-director-of-the-virginia , 7 F.3d 224 ( 1993 )

7 F.3d 224

26 Fed.R.Serv.3d 1399

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Ernest JEWETTE, JR., Petitioner-Appellant,
v.
Edward W. MURRAY, Director of the Virginia Department of
Corrections, Respondent-Appellee.
Ernest JEWETTE, JR., Petitioner-Appellant,
v.
Edward W. MURRAY, Director of the Virginia Department of
Corrections, Respondent-Appellee.

Nos. 93-6408, 93-6561

United States Court of Appeals,
Fourth Circuit.

Submitted: August 20, 1993.
Decided: September 10, 1993.

Appeals from the United States District Court for the Eastern District of Virginia, at Norfolk. Henry C. Morgan, Jr., District Judge. (CA-92-597)

Ernest Jewette, Jr., Appellant Pro Se.

Thomas Drummond Bagwell, Assistant Attorney General, Richmond, Virginia, for Appellee.

E.D.Va.

DISMISSED.

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

OPINION

PER CURIAM:

1

Ernest Jewette, Jr. seeks to appeal two district court orders. In No. 93-6408, he seeks to appeal the district court's order refusing habeas corpus relief pursuant to 28 U.S.C. § 2254 (1988). In No. 93-6561, Jewette appeals from a district court order that denied his motion for reconsideration under Fed. R. Civ. P. 59(e). Although Jewette's first notice of appeal was nullified by his Rule 59(e) motion, his second notice of appeal gave this Court jurisdiction to consider both orders. See McLaurin v. Fischer, 768 F.2d 98, 101 (6th Cir. 1985).

2

A timely Rule 59(e) motion nullifies a notice of appeal filed before disposition of the motion and tolls the appeal period until the court rules upon the motion. Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982); Dove v. CODESCO, 569 F.2d 807, 809 (4th Cir. 1978); Fed. R. App. 4(a)(4). Jewette's first notice of appeal was filed prior to the disposition of his Rule 59(e) motion, thus it was nullified. Therefore, we dismiss case number 93-6408, which that notice of appeal generated, because the notice of appeal was premature.

3

This Court reviews the denial of a Rule 59(e) motion for abuse of discretion. See Boryan v. United States, 884 F.2d 767, 771 (4th Cir. 1989). We cannot say that the district court abused its discretion in denying the motion. As for his section 2254 petition, our review of the record and the district court's opinion accepting the recommendation of the magistrate judge discloses that Jewette's appeal is without merit. Most of Jewette's claims are procedurally barred, and he failed to demonstrate cause and prejudice for his procedural default. See Wainwright v. Sykes, 433 U.S. 72, 87 (1977). His claim of ineffective assistance of counsel is meritless. See Strickland v. Washington, 466 U.S. 668 (1984).

4

Accordingly, in case number 93-6561, which brought up for review the district court's order denying Jewette habeas corpus relief pursuant to 28 U.S.C. § 2254 and its order denying his Rule 59(e) motion, we deny a certificate of probable cause to appeal and dismiss the appeal on the reasoning of the district court. We also deny a certificate of probable cause to appeal and dismiss the appeal in case number 93-6408 since Jewette's notice of appeal in that case was premature.* 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.

DISMISSED

*

We grant Jewette leave to proceed in forma pauperis in this Court