Opinion
Civil No. 2:16-CV-13648
08-30-2018
ALLANAH TUMURA BENTON, Petitioner, v. SHAWN BREWER, Respondent.
OPINION AND ORDER DIRECTING THE CLERK OF THE COURT TO TRANSFER THE MOTION FOR A CERTIFICATE OF APPEALABILITY TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
On June 29, 2018, this Court denied petitioner's application for a writ of habeas corpus, declined to issue a certificate of appealability and granted petitioner leave to appeal in forma pauperis. Benton v. Brewer, No. 2:16-CV-13648, 2018 WL 3207901 (E.D. Mich. June 29, 2018)
Petitioner has now filed a notice of appeal with the United States Court of Appeals for the Sixth Circuit. On the same day, petitioner filed a motion for a certificate of appealability. For the reasons that follow, the Court will further order that petitioner's motion for a certificate of appealability be transferred to the United States Court of Appeals for the Sixth Circuit.
This Court notes that the proper procedure when a district court denies a certificate of appealability 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 writ of habeas corpus or the motion to vacate sentence. See Sims v. U.S., 244 F.3d 509 (6th Cir. 2001)(citing Fed. R.App. P. 22(b)(1)).
A district court has the discretion, pursuant to 28 U.S.C. § 1631, to transfer a case or pleading that has been improperly filed in that court, in the interests of justice, to the proper court. See Roman v. Ashcroft, 340 F.3d 314, 328 (6th Cir. 2003). The Court will therefore order that the Clerk of the Court to transfer petitioner's motion for a certificate of appealability [Dkt. # 13] to the United States Court of Appeals for the Sixth Circuit pursuant to 28 U.S.C. § 1631.
S/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court Dated: August 30, 2018 I hereby certify that a copy of the foregoing document was served upon counsel of record on August 30, 2018, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager