Opinion
Case Number. 03-CV-71656.
March 24, 2006
OPINION AND ORDER DENYING MOTION FOR RECONSIDERATION
Petitioner Artis X. Johnson, a state inmate currently incarcerated at the Carson City Correctional Facility in Carson City, Michigan, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The court issued an Opinion and Order transferring the petition to the Court of Appeals for the Sixth Circuit because it was a successive habeas petition. Petitioner then filed a "Motion for Habeas Corpus Ad Testificandum to Bring Up a Prisoner to Testify," which the court denied on December 15, 2005. Petitioner filed a notice of appeal challenging the court's denial of that motion and a motion to proceed in forma pauperis. The court issued an "Opinion and Order Declining to Issue a Certificate of Appealability and Denying Motion to Proceed In Forma Pauperis" on February 15, 2006. Now before the court is Petitioner's "Motion for Reconsideration of Order Denying Certificte of Appealability and [ In] Forma Pauperis Status on Appeal."
The local rules for the Eastern District of Michigan state that in a motion for reconsideration "the movant must not only demonstrate a palpable defect by which the court and the parties have been misled but also show that correcting the defect will result in a different disposition of the case." E.D. Mich. LR 7.1(g)(3). A "palpable defect" is a "defect which is obvious, clear, unmistakable, manifest or plain." Marketing Displays, Inc. v. Traffix Devices, Inc., 971 F. Supp. 262, 278 (E.D. Mich. 1997) (citing Webster's New World Dictionary 974 (3rd Ed. 1988)).
The court denied a motion for certificate of appealability because the court of appeals may exercise jurisdiction only over final orders, 28 U.S.C. § 1291, or certain collateral or interlocutory orders as described in 28 U.S.C. § 1292, and the court's "Order Denying Motion for Habeas Corpus Ad Testificandum to Bring Up a Prisoner to Testify" is not a final order, nor is it encompassed within the collateral or interlocutory orders described in § 1292. Petitioner has failed to show that this decision was based upon a palpable defect by which the court was misled. Instead, Petitioner simply reargues the merits of his "Motion for Habeas Corpus Ad Testificandum." A motion predicated on such an argument is an insufficient ground for a motion for reconsideration. E.D. Mich. LR 7.1(g)(3); see also Meekison v. Ohio Department of Rehabilitation and Correction, 181 F.R.D. 571, 572 (S.D. Ohio 1998). In addition, the court finds that its decision to deny leave to proceed on appeal in forma pauperis was not based upon a palpable defect by which the court was misled. Accordingly,
IT IS ORDERED that Petitioner's "Motion for Reconsideration of Order Denying Certificate of Appealability and [ In] Forma Pauperis Status on Appeal" [Dkt. #37] is DENIED.