Opinion
Case No. 3:17-cv-080
08-17-2018
JEFFREY ANTONIO BROWN, Petitioner, v. CHAE HARRIS, Warden, Warren Correctional Institution, Respondent.
Magistrate Judge Michael R. Merz
DECISION AND ORDER DENYING "WRIT" FOR CERTIFICATE OF APPEALABILITY
This case is before the Court on Petitioner's "Writ" for Certificate of Appealability (ECF No. 92). As the Court has previously explained to Petitioner, litigants do not have authority to issue writs, which are court orders. Because in the first paragraph of the document, Petitioner "requests" a certificate of appealability, the Court will treat this filing as a motion.
Petitioner seeks a certificate of appealability "on all claims." On May 4, 2018, the Court dismissed his Petition with prejudice, including all the claims made in the case (ECF No. 53). Petitioner is correct that decisions on certificates of appealability are to be made in the first instance by the District Court. Kincade v. Sparkman, 117 F.3d 949 (6th Cir. 1997). To carry out that policy, the Supreme Court enacted Rule 11(a) of the Rules Governing § 2254 Proceedings which provides that "[t]he district court must issue or deny a certificate of appealability when it enters a final judgment adverse to the applicant."
As required by Rule 11(a), this Court already denied a certificate of appealability when it entered judgment dismissing all claims (Decision and Order, ECF No. 53, at PageID 3965). On May 31, 2018, Petitioner filed his "Writ for New Trial" (ECF No. 69) which the Court denied on June 18, 2018 (ECF No. 75). No certificate of appealability determination was made in that Order because it was not deciding any habeas corpus grounds for relief. The Court advised Petitioner in that Order that the May 4, 2018, decision with the accompanying judgment was "a final appealable order of this Court which Petitioner may appeal to the Sixth Circuit Court of Appeals upon obtaining from that court a certificate of appealability . . ." (ECF No. 75, PageID 4088; emphasis added). Thereafter on July 10, 2018, Petitioner filed a Notice of Appeal (ECF No. 90).
The filing of a Notice of Appeals deprives this Court of jurisdiction to reconsider its denial of a certificate of appealability. Filing a notice of appeal divests the District Court of jurisdiction over a case and vests jurisdiction in the Circuit Court of Appeals until the district court receives the mandate of the court of appeals. Marrese v. American Academy of Osteopathic Surgeons, 470 U.S. 373 (1985); Pickens v. Howes, 549 F.3d 377, 381 (6 Cir. 2008); Pittock v. Otis Elevator Co., 8 F.3d 325, 327 (6 Cir. 1993); Lewis v. Alexander, 987 F.2d 392, 394 (6 Cir. 1993); Cochran v. Birkel, 651 F.2d 1219, 1221 (6 Cir. 1981).
Therefore Petitioner's Motion (styled as a "Writ") is denied for lack of jurisdiction. August 17, 2018
*s/Thomas M. Rose
Thomas M. Rose
United States District Judge