Opinion
Case No. 2:16-CV-12016
12-29-2016
CALVIN E. MARSHALL, Petitioner, v. THOMAS WINN, Respondent
OPINION AND ORDER DENYING THE MOTION FOR RECONSIDERATION AND DIRECTING THE CLERK OF THE COURT TO TRANSFER THE MOTIONS FOR A CERTIFICATE OF APPEALABILITY [Dkt. # 13, 16] TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Calvin E. Marshall, ("Petitioner"), filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction and sentence for six counts of assault with intent to commit murder. This Court denied the petition for writ of habeas corpus, declined to issue a certificate of appealability, and granted petitioner leave to appeal in forma pauperis.
Petitioner has filed a notice of appeal. Petitioner has also filed two motions for a certificate of appealability. In his first motion for a certificate of appealability, petitioner explicitly requests this Court to reconsider its decision to deny him a certificate of appealability.
For the reasons that follow, the Court will deny petitioner's motion for reconsideration. The Court will further order that petitioner's motions for a certificate of appealability be transferred to the United States Court of Appeals for the Sixth Circuit.
The Court will deny plaintiff's motion for reconsideration. U.S. Dist.Ct. Rules, E.D. Mich. 7.1 (h) allows a party to file a motion for reconsideration. However, a motion for reconsideration which presents the same issues already ruled upon by the court, either expressly or by reasonable implication, will not be granted. Ford Motor Co. v. Greatdomains.com, Inc., 177 F. Supp. 2d 628, 632 (E.D. Mich. 2001). A motion for reconsideration should be granted if the movant demonstrates a palpable defect by which the court and the parties have been misled and show that correcting the defect will lead to a different disposition of the case. See DirecTV, Inc. v. Karpinsky, 274 F. Supp. 2d 918, 921 (E.D. Mich. 2003).
Petitioner's motion for reconsideration will be denied, because petitioner is merely presenting issues which were already ruled upon by this Court, either expressly or by reasonable implication, when the Court denied petitioner's habeas application and declined to issue a certificate of appealability. See Hence v. Smith, 49 F. Supp. 2d 547, 553 (E.D. Mich. 1999).
This Court notes that the proper procedure when a district court denies a certificate of appealability is for the 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)). In light of the fact that this Court has already denied petitioner a certificate of appealability, petitioner should direct his request for a certificate of appealability to the Sixth Circuit. The Court, in the interests of justice, will order that petitioner's motions for a certificate of appealability to be transferred to the United States Court of Appeals for the Sixth Circuit.
IT IS HEREBY ORDERED that petitioner's motion for a reconsideration is DENIED.
IT IS FURTHER ORDERED that the Clerk of the Court transfer petitioner's two motions for a certificate of appealability [Dkt. # 13, 16] to the United States Court of Appeals for the Sixth Circuit pursuant to 28 U.S.C. § 1631.
s/Denise Page Hood
HON. DENISE PAGE HOOD
CHIEF UNITED STATES DISTRICT JUDGE Dated: December 29, 2016 I hereby certify that a copy of the foregoing document was served upon counsel of record on December 29, 2016, by electronic and/or ordinary mail.
s/Teresa McGovern
Case Manager Generalist