Opinion
Case No. 14-cv-14624
10-09-2015
CHARLES E. JONES, #226897, Petitioner, v. SHERRY L. BURT, Respondent.
OPINION AND ORDER DIRECTING THE CLERK OF THE COURT TO TRANSFER THE MOTION FOR A CERTIFICATE OF APPEALABILITY AND APPLICATION TO PROCEED WITHOUT PREPAYING FEES AND COSTS ON APPEAL TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
On September 14, 2015, this Court denied Petitioner's application for a writ of habeas corpus and further denied him a certificate of appealability or leave to appeal in forma pauperis. Jones v. Burt, No. 14-CV-14624, 2015 WL 5335062 (E.D. Mich. Sept. 14, 2015). On September 22, 2015, Petitioner filed a notice of appeal with the United States Court of Appeals for the Sixth Circuit. Subsequently, on September 29, 2015, Petitioner filed with this Court a motion for a certificate of appealability and a request for continued in forma pauperis status on appeal. ECF Nos. 14, 15. For the reasons that follow, the Court will order that Petitioner's motion for a certificate of appealability and the application to proceed without prepaying fees and costs on appeal be transferred to the United States Court of Appeals for the Sixth Circuit.
The proper procedure when a district court denies a petitioner a certificate of appealability is for the petitioner to file a motion for a certificate of appealability with the appellate court. This should be done 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)). Petitioner has apparently attempted to follow this procedure here, but has filed his motion with the district court, rather than the Sixth Circuit. In the interests of justice, this Court will order the Clerk of Court to transfer Petitioner's motion for a certificate of appealability to the United States Court of Appeals for the Sixth Circuit.
The Court will also order the Clerk of the Court to transfer Petitioner's motion to proceed in forma pauperis on appeal to the Sixth Circuit. A notice of appeal generally "confers jurisdiction on the court of appeals and divests the district court of control over those aspects of the case involved in the appeal." Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 379 (1985) (internal citations omitted); Workman v. Tate, 958 F. 2d 164, 167 (6th Cir. 1992). A petitioner's notice of appeal divests the district court of jurisdiction to consider a motion for permission to proceed in forma pauperis in the Sixth Circuit Court of Appeals. See Johnson v. Woods, No. 5:12-11632; 2013 WL 557271, * 2 (E.D. Mich. February 13, 2013); Glick v. U.S. Civil Service Com'n, 567 F. Supp. 1483, 1490 (N.D. Ill. 1983); Brinton v. Gaffney, 560 F. Supp. 28, 29-30 (E.D. Pa. 1983).
Because jurisdiction of this action was transferred from the District Court to the Sixth Circuit Court of Appeals upon the filing of his notice of appeal, Petitioner's motion to proceed in forma pauperis on appeal would be more appropriately addressed to the Sixth Circuit. In the interests of justice, this Court can transfer Petitioner's application to proceed in forma pauperis to the Sixth Circuit for that court's consideration. See Baker v. Perry, No. 2:12-10424; 2012 WL 6097323, * 2 (E.D. Mich. December 6, 2012).
Accordingly, it is ORDERED that the Clerk of the Court is DIRECTED to transfer Jones's Motion For Certificate of Appealability, ECF No. 14, and Application to Proceed Without Prepaying Fees or Costs on Appeal, ECF No. 15, to the United States Court of Appeals for the Sixth Circuit pursuant to 28 U.S.C. § 1631.
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: October 9, 2015
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each attorney or party of record herein by electronic means or first class U.S. mail on October 9, 2015.
s/Suzanne M. Gammon
SUZANNE M. GAMMON
Deputy Clerk