* 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opinion should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 01-20538

Summary Calendar

 

HARRY J. WHITMAN,

Plaintiff-Appellant,

versus

WILLIAM HOGAN; MICHAEL P. LANE; DAVID WATKINS;

ROBERT KLEMM; KRISTINA ANDERSON; RONALD SAFER; 

JANE DOE; GERALD SHUR; JOHN DOE; EUGENE L. 

COON, JR; GERALD BUNN; JOHN M. CLEVELAND; ERIC 

JOHNSON; JOE DOE; RICHARD I. FREDERICK; MCKASKLE;

RICHARD ENGELE; C. DOE; D. DOE; WASHINGTON;

RONALD G. THOMPSON; ERNEST V. CHANDLER; MIKE 

COOKSEY, Sued in their individual and official

capacities; MICHAEL MCKINNEY; R. A. SMITH; 

LOFTIN, Sued in their individual capacities; 

WARDEN ALDER; ASSISTANT WARDEN OUTLAW,

Defendants-Appellees.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. H-01-CV-541

--------------------

February 1, 2002

Before JONES, SMITH, and EMILIO GARZA, Circuit Judges.

PER CURIAM:*

“A timely notice of appeal is necessary to the exercise

of appellate jurisdiction.” United States v. Cooper, 135 F.3d 960,

961 (5th Cir. 1998). Harry J. Whitman, federal inmate #23111-037,

filed notice of appeal on May 14, 2001, to appeal the court’s order

entered on May 7, 2001. Whitman argues that this notice is
No. 01-20538

-2-

effective for appealing the district court’s May 7 order, and he

implies that the notice is a premature but effective notice for

appealing the court’s May 25, 2001, final judgment.

Federal Rule of Appellate Procedure “4(a)(2) permits a

notice of appeal from a nonfinal decision to operate as a notice of

appeal from the final judgment only when a district court announces

a decision that would be appealable if immediately followed by the

entry of judgment.” FirsTier Mortgage Co. v. Investors Mortgage

Ins., 498 U.S. 269, 276 (1991). “Although an appeal need not be

from a final judgment, still it must be from a final decision.”

Cooper, 135 F.3d at 962. Whitman’s notice of appeal is not

effective notice. Whitman filed notice to appeal the May 7 order,

and that order is not a final decision under Rule 4(a)(2). See

FirsTier Mortgage Co., 498 U.S. at 274-76. Whitman’s ineffective

notice neither conferred jurisdiction on this court nor divested

the district court of its jurisdiction over the case. See

Resolution Trust Corp. v. United States Fid. & Guar. Co., 27 F.3d

122, 126 (5th Cir. 1994).

The final decision in this case was the district court’s

amended memorandum order entered May 25, which reflected the

district court’s grant in part of Whitman’s motion that sought

reconsideration of the May 7 order. There was nothing left for the

district court to do but enter final judgment. Review of the

documents filed either in the district court or in this court,

filed after entry of final judgment, fails to reveal a document

filed by Whitman within the relevant period for timely notice and

which evinces a clear intent by Whitman to appeal. See Mosley v.
No. 01-20538

-3-

Cozby, 813 F.2d 659, 660 (5th Cir. 1987). Consequently, we do not

have jurisdiction over the appeal. 

APPEAL DISMISSED.