Daniels v. Lafler

Full title: TODD DANIELS, Petitioner, v. BLAINE LAFLER, Respondent

Court: United States District Court, E.D. Michigan, Southern Division

Date published: Apr 27, 2006

Case No. 04-CV-71418-DT (E.D. Mich. Apr. 27, 2006)

Opinion

Case No. 04-CV-71418-DT.

April 27, 2006

AMENDED ORDER GRANTING PETITIONER'S MOTION TO DISMISS SECOND APPEAL AND REFUND FILING FEE

DENISE HOOD, District Judge

Petitioner Todd Daniels, through counsel, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On May 26, 2005, the Court issued an Opinion and Order Denying Petition for Writ of Habeas Corpus. Petitioner filed a Notice of Appeal and Motion to Issue Certificate of Appealability in this Court on June 21, 2005, and paid the associated $255.00 filing fee. On August 8, 2005, the United States Court of Appeals for the Sixth Circuit entered an order dismissing the appeal on the ground that "(n)o final or appealable order terminating all the issues presented in the litigation has been entered." See Daniels v. Lafler, No. 05-1846 (6^th Cir. Aug. 8, 2005). The Court's docket sheet was corrected on July 18, 2005, to reflect the Court's May 26, 2005 opinion and judgment.

Petitioner filed another Notice of Appeal and Motion to Issue Certificate of Appealability in this Court on August 15, 2005, in an attempt to preserve Petitioner's right to appeal. Petitioner, through counsel, once again paid the $255.00 appellate filing fee. On August 26, 2005, the Sixth Circuit Court of Appeals issued an Order withdrawing the August 8, 2005 order dismissing the appeal and reinstated the appeal to the court's active docket. See Daniels v. Lafler, No. 05-1846 (6^th Cir. Aug. 26, 2005). Petitioner's counsel now asks the Court to dismiss the appeal filed August 15, 2005 and direct that the $255.00 filing fee paid in connection with that appeal be refunded to him. The Clerk's records indicate the filing fee was paid by Petitioner's counsel. The Court finds that, in the interest of justice, the duplicative Notice of Appeal should be dismissed and the $255.00 filing fee paid in connection with the second notice of appeal should be refunded to Petitioner's counsel.

Accordingly, IT IS ORDERED that Petitioner's Motion to Dismiss Second Appeal and Refund Filing Fee is GRANTED. The Clerk of Court is directed to refund the $255.00 filing fee paid in connection with the notice of appeal filed on August 15, 2005, receipt # 530124, to Petitioner's counsel, James S. Lawrence.