Opinion
CIVIL 2:22-CV-10341
04-04-2023
LIBERTY ANNE WALDEN, Petitioner, v. JEREMY HOWARD, Respondent.
ORDER DIRECTING THE CLERK OF THE COURT TO TRANSFER THE MOTION FOR A CERTIFICATE OF APPEALABILITY (ECF No. 11) TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
HONORABLE VICTORIA A. ROBERTS, JUDGE
Petitioner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254, challenging her conviction for one count of first-degree criminal sexual conduct (CSC), M.C.L.A. 750.520b, and four counts of second-degree criminal sexual conduct, M.C.L.A. 750.50c. The Court denied the petition for a writ of habeas corpus with prejudice. The Court also denied Petitioner a certificate of appealability but granted Petitioner leave to appeal in forma pauperis. Walden v. Howard, No. 2:22-CV-10341, 2023 WL 2087960 (E.D. Mich. Feb. 17, 2023).
Petitioner filed a Notice of Appeal. (ECF No. 9). Petitioner also filed a motion for a certificate of appealability (ECF No. 11).
The proper procedure when a district court denies a certificate of appealability, as this Court did, is for the habeas petitioner to file a motion for a certificate of appealability before the appellate court in the appeal from the judgment denying the petition for a writ of habeas corpus or a motion to vacate sentence. See Sims v. U.S., 244 F.3d 509 (6th Cir. 2001)(citing Fed. R. App. P. 22(b)(1)). Petitioner's request for a certificate of appealability should be directed to the Sixth Circuit. See Hayes v. Horton, 606 F.Supp.3d 676, 678 (E.D. Mich. 2022).
Accordingly, the Clerk of the Court is ORDERED to transfer the “Motion for a Certificate of Appealability” (ECF No. 11) to the United States Court of Appeals for the Sixth Circuit pursuant to 28 U.S.C. § 1631.