IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-20954
USDC H-97-CV-2057
TERRY LEE WALLS,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
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October 1, 1999
Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Terry Lee Walls, Texas state prisoner # 613732, has applied
to this court for a certificate of appealability (COA) and leave
to appeal in forma pauperis (IFP). IT IS ORDERED that IFP is
GRANTED, COA is DENIED as premature, and the cause is REMANDED
for further proceedings.
On the tenth calendar day after entry of the final judgment
dismissing Walls’s habeas corpus petition, he filed a motion
seeking relief from the judgment. The record indicates that the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 98-20954
-2-
district court has not ruled on this motion.
A motion challenging the correctness of the judgment is
treated as a Fed. R. Civ. P. 59 motion for purposes of Fed.
R. App. P. 4(a)(4)(B)(i), regardless of the label applied to the
motion, if it is made within the ten-day limit for Rule 59
motions. Mangieri v. Clifton, 29 F.3d 1012, 1015 n.5 (5th Cir.
1994); Harcon Barge Co. v. D & G Boat Rentals, Inc., 784 F.2d
665, 667 (5th Cir. 1986) (en banc). Rule 4(a)(4)(B)(i) provides
that if a timely motion is made pursuant to Rule 59(e), a notice
of appeal filed after entry of the judgment, but before
disposition of the motion, is ineffective until the entry of an
order disposing of the motion.
Walls’s postjudgment motion must be treated as a Rule 59(e)
motion because the motion was filed within ten days of the entry
of the judgment dismissing his habeas petition. Since the Rule
59(e) motion has not yet been disposed of, Walls’s notice of
appeal is ineffective. Accordingly, we must REMAND the cause to
for the limited purpose of permitting the district court to rule
on the motion as expeditiously as possible. See Burt v. Ware, 14
F.3d 256, 260-61 (5th Cir. 1994).
Following entry of the district court’s order on Walls’s
Rule 59(e) motion, he may file an amended notice of appeal within
the period prescribed in Fed. R. App. P. 4(a)(1), designating the
orders or judgments from which he wishes to appeal. See Fed. R.
App. P. 4(a)(4)(B)(ii).
IFP GRANTED; COA DENIED; CAUSE REMANDED.